City of Geneseo v. Illinois Northern Utilities Co.

• Decision Date: 15 January 1942
• Docket Number: Nos. 25930,25933.,s. 25930
• Court: Illinois Supreme Court
• Parties: CITY OF GENESEO v. ILLINOIS NORTHERN UTILITIES CO. VILLAGE OF HEYWORTH v. CENTRAL ILLINOIS ELECTRIC & GAS CO.

378 Ill. 506

39 N.E.2d 26

CITY OF GENESEO

v.ILLINOIS NORTHERN UTILITIES CO.

VILLAGE OF HEYWORTH

v.CENTRAL ILLINOIS ELECTRIC & GAS CO.

Nos. 25930, 25933.

Supreme Court of Illinois.

Nov. 24, 1941.

Motion to Reconsider Denied Jan. 15, 1942.

Appeal from Circuit Court, Henry County; A. J. Scheineman, judge.

Appeal from Circuit Court, McLean County; William C. Radliff, Judge.

Complaint by the City of Geneseo against the Illinois Northern Utilities Company and complaint by the Village of Heyworth against the Central Illinois Electric and Gas Company to require the defendants to vacate the streets of each municipality. From orders which affirmed the orders of the Illinois Commerce Commission dismissing the complaints, the plaintiffs appeal.

Reversed and remanded with directions.

STONE and SHAW, JJ., dissenting.

Joseph L. Shaw, of Geneseo, and Richard M. O'Connell, of Bloomington (Thomas A. Matthews, A. L. Stoddard, C. L. Emrich, Jr., R. Z. Hickman, Anan Raymond, and Poppenhusen, Johnston, Thompson & Raymond, all of Chicago, of counsel), for appellants.

Isham, Lincoln & Beale, and Wilson & McIlvaine, all of Chicago, Dixon, Devine, Bracken & Dixon, of Dixon, Henry Waterman, of Geneseo, and Gottlieb & Schwartz, of Chicago (David F. Taber, Claude A. Roth, Harry J. Dunbaugh, and Clay Judson, all of Chicago, John P. Devine, of Dixon, and Edward M. Bullard, and Harry E. Smoot, both of Chicago, of counsel), for appellees.

George F. Barrett, Atty. Gen. (Harry R. Booth, of Chicago, of counsel), for Illinois Commerce Commission.

Sidley, McPherson, Austin & Burgess, of Chicago, Henry C. Warner, of Dixon, Albert A. Barnhard, of Mount Carmel, Bracken, Livingston, Murphy & Barger, of Bloomington, Charles E. Feirich, of Carbondale, Miller, Westervelt, Johnson & Guenther, of Peoria, Patton, Allen & Converse, of Springfield, Pope & Driemeyer, of East St. Louis, Quinn, Quinn & O'Hern, of Peoria, Sinnett & Britton, of Rock Island, Stevens & Herndon, of Springfield, Wilfred Arnold, of Galesburg, Ben B. Boynton, of Springfield, Browder & Allen, of Rantoul, Charles H. Green, of Freeport, Kiger & Dilsaver, of Mattoon, J. A. Riordon, of Fulton, Ross & Watts, of Chicago, G. R. Schwarz, of Jerseyville, Josef T. Skinner, of Princeton, Smith & Brower, of Sycamore, and Franklin J. Stransky, of Savanna (Kenneth F. Burgess, James F. Oates, Jr., and Leslie N. Jones, all of Chicago, of counsel), amici curiae.

GUNN, Justice.

These consolidated cases are appeals from the orders of the circuit courts of Henry and McLean counties, which affirmed the orders of the Illinois Commerce Commission dismissing the complaints of appellants. The issue in the two cases are identical, and the material allegations of each complaint are admitted by the answers. In each case the municipality granted to the electric public utility company a franchise or license to place its poles and other electric facilities upon, under or in the streets of the municipality for a definite number of years, which franchise was accepted by the utility company and service rendered thereunder. Later, each municipality erected and was operating its own municipally owned electric light plant. The franchises of the two utilities companies expired by the lapse of time prescribed in the ordinances granting them. When these franchises expired the utilities companies refused to remove their facilities from the streets, and each municipality passed an ordinance ordering the respective companies to do so. Each utility continued to serve its customers and also patrons outside of the limits of the municipalities. Each municipality filed a complaint with the Illinois Commerce Commission praying that the privately owned public utilities be ordered to vacate the streets of each municipality and remove therefrom all of their poles, wires and facilities, and to cease doing business in each by supplying the inhabitants with its product. These complaints were filed with the commission after suits for mandatory injunctions in the several circuit courts had been dismissed, following our decision in City of Geneseo v. Illinois Northern Utilities Co., 363 Ill. 89, 1 N.E.2d 392.

The Commerce Commission took the position that the former Geneseo case settled the issues in this case. In its order and findings, among other things it said: ‘We conceive the effect of the Supreme Court decision in the Geneseo case to be that the question of whether or not a public utility should discontinue service in the municipality after the expiration of its ordinance is a matter to be determined by this commission and that such determination should be made in accordance with the just and reasonable requirements of public convenience and necessity, that is, whether or not the respondent public utility now serves a useful purpose in the village of Heyworth as contemplated by the Public Utilities act,’ etc. Among its findings is the following: ‘That public convenience and necessity does not require the termination or modification of that part of the certificate heretofore mentioned concerning the village of Heyworth; that its service in said village is in the public interest; and that the prayer of said complainant that said respondent company be required to vacate the streets, alleys and other public places of said village of Heyworth and remove therefrom all of its poles, wires and other appliances and to cease doing business in said village and to cease supplying the inhabitants thereof with electric energy, for heat, light and power, should be denied and the complaint dismissed.’ A similar order was entered in the Geneseo case.

Counsel for appellants state the question involved to be the right and power of a municipality to control and license the entry upon its streets by a public utility, and to terminate such occupation at the time the franchise or license expires. In a broader sense the implication is more extended, as the position taken by appellees amounts to construing the power of the Illinois Commerce Commission to have supervision, regulation and control over the streets of the city by statutory language granting only supervision over utilities.

At the outset it is claimed that the case of the City of Geneseo v. Illinois Northern Utilities Co. supra, has adjudicated the issue presented in this case. That was a complaint brought by the city for a mandatory injunction to compel the utility to remove its facilities from the streets. It is to be noted that in the former Geneseo case the issue was raised on a motion to strike the answer. The answer set up three propositions: (1) That the defendant was a public utility operating under the statute and within the jurisdiction of the Commerce Commission; (2) that the requirements of the Public Utilities act prohibit the defendant, without the consent of the commission, from ceasing to furnish electric service to the plaintiff and prohibits the city from removing transmission facilities from the street unless authorized by the commission; (3) that the city is without legal authority to prohibit the use or occupation of the streets in the city by the defendants for its distribution system, and is without authority to maintain the suit. After reciting these three grounds in the answer the court, in its opinion, stated that the issue presented was whether the plaintiff could maintain the action. The judgment of the court remanded the cause to the circuit court, with directions to overrule the motion to strike the answer.

There were three issues presented, some of which would foreclose further action, and some of which would not. The second ground set forth that the utility could not remove its facilities from the streets without authority from the Commerce Commission, is not involved in the third objection that the city is without legal authority to prohibit the use or occupation of the streets by a utility, because a total lack of power would prevent any action in that regard by the city, whereas removal could be required on the second ground if it appeared to the Commerce Commission it was desirable or necessary for the utility to abide the demand of the city. One ground presents a limitation upon the utility, the other upon the municipality.

The burden of establishing an estoppel by judgment is upon him who invokes it, and to so operate it must either appear upon the face of the record or be shown by extrinsic evidence that the precise question was raised in determining the former suit. In Russell v. Place, 94 U.S. 606, 608, 24 L.Ed. 214, it is said: ‘If there be any uncertainty on this head in the record,-as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of whem was thus litigated, and upon which the judgment was rendered,-the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined.’

In Sawyer v. Nelson, 160 Ill. 629, 43 N.E. 728, where three counts in a declaration were involved, which set up different causes of action, and there was nothing appearing upon the record to indicate upon which count judgment was rendered, or any extrinsic evidence offered to show that the judgment was based upon a certain count, this court held that there was nothing to show there had been a precise adjudication of the facts alleged in any one of the counts. The same principle has been sustained in Kitson v. Farwell, 132 Ill. 327, 23 N.E. 1024;Chicago Theological Seminary v. People, 189 Ill. 439, 59 N.E. 977;Markley v. People, 171 Ill. 260, 49 N.E. 502,63 Am.St.Rep. 234;Jernberg v. Mix, 199 Ill. 254, 65 N.E. 242; and People v. Wyanet Electric Light Co., 306 Ill. 377, 137 N.E. 834. In the last case objections in a tax proceeding raised an issue that the property was not taxable, and also that the assessment was void because made without...