Village of Bolingbrook v. Citizens Utilities Co. of Illinois

• Decision Date: 03 February 1994
• Docket Number: No. 74201,74201
• Citation: 158 Ill.2d 133,632 N.E.2d 1000,198 Ill.Dec. 389
• Parties: , 198 Ill.Dec. 389 The VILLAGE OF BOLINGBROOK, Appellant, v. CITIZENS UTILITIES COMPANY OF ILLINOIS, Appellee.
• Court: Illinois Supreme Court

Page 1000

632 N.E.2d 1000

158 Ill.2d 133, 198 Ill.Dec. 389

The VILLAGE OF BOLINGBROOK, Appellant, v. CITIZENS UTILITIES COMPANY OF ILLINOIS, Appellee.

No. 74201.

Supreme Court of Illinois.

Feb. 3, 1994.

Barry L. Moss, Norma J. Guess and George A. Marchetti, Moss and Bloomberg, Ltd., Bolingbrook, for appellant.

Herschbach, Tracy, Johnson, Bertani & Wilson, Joliet (Thomas R. Wilson, of counsel), for appellee.

Beth Anne Janicki, IL Mun. League, Springfield, for amicus curiae IL Mun. League.

Justice MILLER delivered the opinion of the court:

Plaintiff, the Village of Bolingbrook, is a home rule municipality. Defendant, Citizens Utilities Company of Illinois, is an investor- Plaintiff alleges that on April 9, 1991, and April 15, 1991, there were substantial discharges of raw, untreated sanitary sewage from defendant's lines. These discharges allegedly deposited raw sewage on various properties located throughout plaintiff's corporate limits.

[198 Ill.Dec. 390] owned Illinois public utility. Defendant furnishes water and sanitary sewage services within plaintiff's corporate limits.

Based on the individual sewage discharges, plaintiff filed 20 separate complaints against defendant in the circuit court of Will County for violation of its municipal ordinance number 24-201, which provides as follows:

"UNLAWFUL PLACEMENT OF WASTE PROHIBITED. It shall be unlawful for any person to place, deposit, or permit to be deposited in any unsanitary manner on public or private property within the Village, or on any area under the jurisdiction of the Village, any human or animal excrement, garbage or other objectionable waste."

Two of these complaints related to the alleged April 9 discharges of sewage. The remaining 18 complaints related to the alleged discharges of April 15. Plaintiff also filed 22 additional complaints against defendant under its municipal ordinance number 24-200, which provides as follows:

"UNLAWFUL DISCHARGE INTO NATURAL OUTLET. It shall be unlawful to discharge to any natural outlet within the Village, or in any area under the jurisdiction of the Village, any sewage or other polluted waters, except where suitable treatment has been provided in accordance with subsequent provisions of this Chapter."

Two of these complaints related to the alleged April 9 discharges of sewage. The remaining 20 complaints related to the alleged discharges of April 15.

The 42 complaints filed by plaintiff against defendant carried fines of $100 each. Plaintiff did not seek an injunction to prevent future discharges of sewage or to force defendant to repair its sewer lines.

Defendant filed motions to dismiss the complaints alleging that the Public Utilities Act (Ill.Rev.Stat.1991, ch. 111 2/3, par. 1-101 et seq.) preempted plaintiff's ordinances. The circuit court held that the ordinances were preempted and granted defendant's motions. The appellate court affirmed, with one justice dissenting. (231 Ill.App.3d 740, 173 Ill.Dec. 538, 597 N.E.2d 246.) Plaintiff requested leave to appeal to this court and we granted the request. (134 Ill.2d R. 315(a).) We now reverse.

DISCUSSION

The first issue presented is whether plaintiff, as a home rule unit, had authority to enact the ordinances in question. If so, we must then consider whether the enforcement of plaintiff's ordinances against a public utility is preempted by the Public Utilities Act.

"Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt." (Ill. Const.1970, art. VII, § 6(a).) Section 6(m) provides that "[p]owers and functions of home rule units shall be construed liberally." Ill. Const.1970, art. VII, § 6(m).

Plaintiff's ordinances were designed to protect the public health, and are therefore a valid exercise of plaintiff's home rule power under section 6 of the 1970 Illinois Constitution. Our finding that plaintiff's home rule powers provide authority for the ordinances in question does not end our inquiry. Defendant contends that plaintiff's ordinances are preempted by the Public Utilities Act (the Act).

The conflict between State and local legislation is one of the most troublesome areas associated with home rule. To prevent the problems in this area experienced by the courts of other home rule States, the delegates to the Sixth Illinois Constitutional Convention proposed to limit traditional preemption by providing clear constitutional guidelines for the General Assembly to follow in preempting the powers of a home rule unit. (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1645.) In furtherance Defendant contends that the Act provides for comprehensive regulation of public utilities. (See Ill.Rev.Stat.1991, ch. 111 2/3, par. 1-102 ("The General Assembly finds that the health, welfare and prosperity of all Illinois citizens require the provision of * * * environmentally safe * * * public utility services * * *. It is therefore declared to be the policy of the State that public utilities shall continue to be regulated effectively and comprehensively").) Defendant claims that by comprehensively regulating public utilities, the Act satisfies the provisions of section 6(h) requiring that the General Assembly specifically provide by law for the exclusive exercise by the State of a home rule unit's power to enact laws for the public welfare as that power relates to public utilities. In support of its position, defendant cites Illinois Liquor Control Comm'n v. City of Joliet (1975), 26 Ill.App.3d 27, 32, 324 N.E.2d 453, where the appellate court stated that "exclusivity [under section 6] may be expressed * * * by enactment of a comprehensive regulatory scheme."

                [198 Ill.Dec. 391] of this objective, the delegates drafted sections 6(g), 6(h) and 6(i) of article VII.  Section 6(g) provides that the General Assembly may, by a three-fifths majority vote, deny or limit home rule powers in an area not regulated by the State.  (Ill. Const.1970, art.  VII, § 6(g).)   Under section 6(h), the General Assembly may "provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit."  (Ill. Const.1970, art.  VII, § 6(h).)  Section 6(i) states that, in the absence of express language, "[h]ome rule units may exercise and perform concurrently with the State any power or function of a home rule unit."  Ill. Const.1970, art.  VII, § 6(i)
                

We decline to adopt the reasoning of Illinois Liquor Control Comm'n v. City of Joliet. Section 6(h) provides that the General Assembly may "provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit." (Ill. Const.1970, art. VII, § 6(h).) We believe the language of section 6(h) is clear. In order to meet the requirements of section 6(h), legislation must contain express language that the area covered by the legislation is to be exclusively controlled by the State. (See City of Evanston v. Create, Inc. (1981), 85 Ill.2d 101, 108, 51 Ill.Dec. 688, 421 N.E.2d 196; Beverly Bank v. County of Cook (1987), 157 Ill.App.3d 601, 605, 109 Ill.Dec. 873, 510 N.E.2d 941.) It is not enough that the State comprehensively regulates an area which otherwise would fall into home rule power. Accordingly, we do not believe that the requirements of section 6(h) have been met in the present case.

Defendant next claims that as applied to public utilities, plaintiff's ordinances do not pertain to plaintiff's government and affairs. (See Ill. Const.1970, art. VII, § 6(a).) An ordinance pertains to the government and affairs of a home rule unit where the ordinance relates to problems that are local in nature rather than State or national. People ex rel. Bernardi v. City of Highland Park (1988), 121 Ill.2d 1, 12-13, 117 Ill.Dec. 155, 520 N.E.2d 316; Kalodimos v. Village of Morton Grove (1984), 103 Ill.2d 483, 501, 83 Ill.Dec. 308, 470 N.E.2d 266; Ampersand, Inc. v. Finley (1975), 61 Ill.2d 537, 542, 338 N.E.2d 15.

Extreme cases are clear. If a problem is purely statewide or national in nature, it does not pertain to the government and affairs of a home rule unit. On the other hand, if a problem is purely local in nature, it does pertain to the government and affairs of a home rule unit. Difficulty arises, however, when a problem has a local as well as a statewide or national impact. In this instance, the court must weigh several factors. The relevant factors were set out in Kalodimos, 103 Ill.2d 483, 83 Ill.Dec. 308, 470 N.E.2d 266.

In Kalodimos, the Village of Morton Grove passed an ordinance banning the possession of all operable handguns. Certain residents of Morton Grove filed suit for a declaratory judgment that the ordinance was invalid. In part, plaintiffs claimed that the regulation of firearms was a matter of statewide concern, and that it was thus beyond a home rule unit's power to enact an ordinance banning handguns. The court stated:

"Whether a particular problem is of statewide rather than local dimension must See also Ampersand, Inc., 61 Ill.2d at 539-41, 338 N.E.2d 15.

[198 Ill.Dec. 392] be decided not on the basis of a specific formula or listing set forth in the Constitution but with regard for the nature and extent of the problem, the units of government which have the most vital interest in its solution, and the role traditionally played by local and statewide authorities in dealing with it." Kalodimos, 103 Ill.2d at 501, 83 Ill.Dec. 308, 470 N.E.2d 266.

Defendant contends that because the Act comprehensively regulates public utilities, it is beyond a home rule unit's power to enact an ordinance affecting the operations of a public utility. As stated in Kalodimos, the historic regulation of an area is merely one factor to consider in determining whether the area is of local...