City of Geneseo v. Illinois Northern Utilities Co. ( 1936 )

For the reasons given in Chicago North Shore and MilwaukeeRailroad Co. v. City of Chicago, 331 Ill. 360, and in the dissenting opinion filed by me in Chicago Motor Coach Co. v.City of Chicago, 337 Ill. 200, 1 cannot concur in the view expressed in the majority opinion that section 81 of the Public Utilities act does not leave to cities the power to say whether the instrumentalities of a utility shall occupy the streets. That section is a part of the Public Utilities act, and I am unable to place any construction on it other than that given it in Chicago North Shore and Milwaukee Railroad Co. supra, i. e., that it leaves in the city the power which it had before the enactment of the Public Utilities act, to regulate the location of and to consent to, or license, the construction of instrumentalities of a utility in the streets, though such power does not extend to the regulation of the utility itself. The power to consent necessarily implies the power to refuse to consent. The question is one of statutory construction. To construe that section to mean that the city may determine whether it will consent to, or license, such use of the streets but is powerless to deny continued use after the period of license has elapsed, because such denial would necessitate stopping the service, seems to me to render section 81 meaningless. Though it may be said to be wiser to vest the power to consent to or license the use of the streets by appellant in the Utilities Commission, such result should be accomplished by an amendment of the act. It is a legislative matter.

Mr. JUSTICE FARTHING, also dissenting.