City of Geneseo v. Illinois Northern Utilities Co. ( 1941 )

I cannot concur in the entry of the judgment directed by the majority opinion. The controlling question in these cases is, and always has been, one of construction of applicable statutes in accord with legislative intent. The whole field of public utilities and their relation to cities and villages is admittedly a legislative matter. Legislation has been enacted in that field.

Cities and villages on the one hand, and the Commerce Commission on the other, are creatures of the General Assembly. Each possesses such powers, and only such powers, as are conferred upon it by legislative enactment. Cities and villages and their powers are wholly under the control of the General Assembly. (People v. City of Springfield, 370 Ill. 541; NormalSchool v. City of Charleston, 271 id. 602; Metropolitan ElevatedRailway Co. v. City of Chicago, 261 id. 624.) The Commerce Commission likewise derives its powers only from the statute. It has no authority except such as is thereby expressly conferred upon it. Lambdin v. Commerce Com. 352 Ill. 104; Chicago RailwaysCo. v. Commerce Com. 336 id. 51; Public Utilities Com. v.Illinois Central Railroad Co. 274 id. 36.

It is settled in this State that the General Assembly may transfer powers previously conferred on cities and villages to the Commerce Commission and take such powers from it and reconfer them upon cities and villages. (Chicago, North Shore andMilwaukee Railroad Co. v. City of Chicago, 331 Ill. 360; Villageof Atwood v. Cincinnati, Indianapolis and Western Railroad Co. 316 id. 425.) It follows, therefore, that courts, though called upon to determine legislative intent as expressed in statutes dealing with the subject, may not interfere with such legislation so long as it is within constitutional limitations.

In Chicago Motor Coach Co. v. City of Chicago, 337 Ill. 200, and City of Geneseo v. Illinois Northern Utilities Co. 363 Ill. 89, I dissented from the construction placed by the majority opinions upon the statutes involved, on the ground that such construction did not accord with legislative intent. Since the decision in the Motor Coach case, six General Assemblies have sat, and since the Geneseo case, three. No amendment to the Public Utilities act indicating legislative intent to change the results of those cases has been enacted, though attempts to secure such changes have been made. It has long been a settled and unvaried rule in this State, that where a decision of this court has been recognized by the General Assembly and has been acted upon for a substantial period of time, it is the province of the General Assembly, and not of this court, to change the effect of that decision if the people want it changed. (Headen v. Rust, 39 Ill. 186; Bulpit v. Matthews, 145 id. 345.) This rule should apply with particular force to decisions construing legislative intent. I am, therefore, convinced that this court should not, at this late day, change the long adopted interpretation of these statutes.

That this is so finds further important support in the fact, which this court is entitled to know because generally known, though not shown by these records to have been true of either of appellees, that numerous like utilities in this State have been financed, or refinanced, on the basis of a certificate of convenience and necessity from the Commerce Commission, and bonds have been issued and sold on such basis. Doubtless in some of such cases franchises issued by cities or villages have expired. To now hold that the continued existence of such utilities must depend upon the uncertainty and limited period of a city or village franchise, is to subject the investment of the purchasers of such bonds to a drastic shrinkage in value. Such a result should certainly be avoided.

For these reasons, and because of the importance of stability in judicial decision, I am of the opinion that the orders of the trial courts in these cases should be affirmed.

Mr. JUSTICE SHAW, also dissenting.