620 N.E.2d 1040
No. 72315. Affirmed.Supreme Court of Illinois.
Opinion filed August 26, 1993. Rehearing denied October 4, 1993.
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Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Robert L. Sklodowski, Judge, presiding.
Jack M. Siegel, of Altheimer Gray, of Chicago, for appellants.
Howard J. Trienens, Gerald A. Ambrose, J. Andrew Schlickman, Michelle M. Cain and John A. Heller, of Sidley Austin, and Thomas R. Phillips, O. Carey Epps, Dennis S. Pines and Timothy L. Porter, all of Chicago, for appellees.
Kelly R. Welsh, Corporation Counsel, and Susan S. Sher, Acting Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Lynn Kristine Mitchell, of counsel), for intervenor-appellant City of Chicago.
Beth Anne Janicki, of Springfield, for amicus curiae
Illinois Municipal League.
Seymour Simon, Thomas F. Geselbracht and John E. Mitchell, of Rudnick Wolfe, of Chicago, for amicus curiae Western Union ATS, Inc.
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Kevin M. Forde Ltd., of Chicago (Kevin M. Forde and Katrina Veerhusen, of counsel), for amicus curiae Illinois Telephone Association.
Boyd J. Springer and Thomas P. McNulty, of Jones, Day, Reavis Pogue, of Chicago, for amicus curiae Illinois Chapter, National Association of Water Companies.
Herbert D. Hill, Assistant Corporation Counsel, of Evanston, for amicus curiae City of Evanston.
Mark C. Goldenberg, City Attorney, of Granite City, fo amicus curiae City of Granite City.
John P. Kelliher, of Chicago, for amicus curiae Illinois Commerce Commission.
Erwin W. Jentsch, Michael R. Gehrman and William A. Cogley, of Elgin, for amicus curiae City of Elgin.
Robert J. Alfton, of Minneapolis, Minnesota, Joseph I. Mulligan, of Morris Quinn, of Boston, Massachusetts, Robert J. Mangler, of Klein, Thorpe Jenkins, of Chicago, Joseph N. De Raismes, of Boulder, Colorado, Frank B. Gummey III, of Daytona Beach, Florida, Benjamin L. Brown, Michael P. Moss and Donna Clemons-Sacks, of Washington, DC, Analeslie Muncy, of Fielding, Barrett Taylor, of Fort Worth, Texas, David Caylor, City Attorney, of El Paso, Texas, Frederick S. Dean, City Attorney, of Tuscon, Arizona, James H. Epps III, City Attorney, of Johnson City, Tennessee, Neal M. Janey, City Solicitor, of Baltimore, Maryland, Iris J. Jones, City Attorney of Prairie View, of Small, Craig Werkenthin, of Austin, Texas, Victor J. Kaleta, City Attorney, of Pasadena, California, William J. Kearns, Township Solicitor, of Willingboro, New Jersey, Patricia A. Lynch, City Attorney, of Reno, Nevada, Robert J.
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Watson, City Attorney, of Overland Park, Kansas, and John J. Zimmermann, of Park Ridge, for amicus curiae National Institute of Municipal Law Officers.
JUSTICE HEIPLE delivered the opinion of the court:
The question presented by this case is whether municipal governments can extort toll charges or franchise fees for the crossing of public ways. They cannot. The factual context of this case is that ATT is laying an underground fiber optic cable along an 85-mile line in northern Illinois between Glenview and Rockford. The line is being laid along railroad right-of-way of the Chicago and North Western Transportation Company (CNW) pursuant to an easement granted by CNW. The cable is designed to carry only long distance telephone communications. Additionally, telecommunications traffic can enter or leave the cable only at ATT’s terminal points in Glenview, Rockford, and Rolling Meadows.
In transversing the 85-mile cable route following the railroad right-of-way, the cable must pass under more than 140 travelled public ways subject to the jurisdiction of five counties, six townships, 13 cities and villages, plus the Illinois Department of Transportation, the Corps of Engineers and the Illinois Toll Authority. Five cities and villages in the path of this cable will not permit street crossings unless ATT agrees to so-called franchise agreements or tolls which ATT refused to pay. Various demands were made upon ATT, including a percentage of gross revenues and $2.50 per foot of cable within the municipalities regardless of whether the cable was crossing the street or located entirely on CNW’s property. It is to be noted that none of the municipalities object to the installation of the cabl per se. They simply want to collect a toll for it.
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In an action by the telephone company, the trial court initially entered a preliminary injunction in favor of the telephone company allowing the installation of the fiber optic cable without a franchise agreement. The appellate court, on an interlocutory appeal taken by the municipalities, affirmed the granting of the preliminary injunction, and the cause was subsequently returned to the trial court for a ruling on the permanent injunction. A permanent injunction barring the municipalities’ interference with the installation of the fiber optic cable was entered by the trial court and the municipalities again appealed. The appellate court concluded that municipalities do not have an absolute right to require a franchise agreement as a prerequisite to a telephone company’s utilization of the public streets. (216 Ill. App.3d 474.) We allowed the municipalities’ petition for leave to appeal and, in a split decision, reversed the appellate court. A majority of this court held that the municipalities have the right to prohibit ATT from crossing public streets without a franchise agreement, and that the franchise agreement could require ATT to pay rent for the crossing of the streets. Thereafter, ATT’s petition for rehearing was allowed (134 Ill.2d R. 367), and the case was reargued. Today we rule that municipalities do not have a proprietary interest in the public streets and may not raise revenue by coercing telephone companies into franchise agreements.
FACTS
The detailed factual background of this case is as follows. Plaintiffs, American Telephone and Telegraph Company, and ATT Communications of Illinois, Inc. (hereinafter collectively referred to as ATT), were laying an underground 85-mile long fiber optic cable between Glenview and Rockford, Illinois. The cable, pursuant to an easement granted to ATT by the Chicago and North Western Transportation Company, was being installed
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below ground along the side of a railroad roadbed. The cable was located exclusively on CNW’s private property except at points where the railroad roadbed intersected with public streets.
More than 140 streets, roads, and highways cross the Glenview/Rockford cable route, and except for the municipalities of Arlington Heights, Palatine, Barrington, Lake Barrington, and Crystal Lake, ATT was able to receive the appropriate undercrossing permits for either no charge or by paying an administrative fee. ATT was informed that the Northwest Municipal Conference would negotiate franchise agreements between ATT and the defendant municipalities. Initially, the Northwest Municipal Conference proposed that ATT enter into a franchise agreement similar to an existing agreement between ATT and the City of Chicago. This agreement provided for the paying of 2% of ATT’s gross revenues derived from long-distance calls originating in the City of Chicago, or a minimum payment of $5 million per year. ATT refused to accept this proposal.
The Northwest Municipal Conference offered an alternative proposal requiring ATT to pay each of the defendant municipalities $2.50 per foot of cable installed within the municipality. This proposal made it immaterial whether the cable was undercrossing public streets or located on CNW’s private property. ATT also rejected this proposal and responded with its own offer of $1 per foot of cable located on the public right-of-way and paying an administrative fee of $5,000 per year. This proposal was rejected and an agreement was not reached.
In 1987, ATT submitted permit applications to the defendant municipalities seeking permission to install the fiber optic cable beneath the street crossings. The Village of Lake Barrington initially granted a permit, but it was revoked prior to the installation of the fiber optic cable. The other defendant municipalities refused to issue
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the permits. The rationale for denying ATT’s permit application was based upon the fact that a franchise agreement had not been entered into. However, none of the municipal ordinances required a permit applicant to enter into a franchise agreement in order to obtain a permit.
On August 11, 1987, ATT mailed notices to the villages of Arlington Heights, Barrington and Palatine in an effort to invoke the eminent domain authority of telephone companies as specified in section 4 of the Telephone Company Act (Ill. Rev. Stat. 1987, ch. 134, par. 20). The notices gave the villages 10 days’ notice that ATT intended to begin constructing its fiber optic cable under various streets intersecting with the CNW railroad. A similar letter was mailed to the City of Crystal Lake on September 11, 1987. ATT commenced work in the villages of Arlington Heights and Palatine. However, since permits had not been issued and a franchise agreement had not been entered into, the municipalities ordered ATT to stop work.
ATT filed a complaint against the defendant municipalities and sought a preliminary injunction to prevent their future interference in the installation of the fiber optic cable under the streets. During the injunction hearings, defendants maintained that “[r]equiring payment of a fee as a condition for use of * * * property by a commercial enterprise is a legitimate means of raising revenue.” Defendants also took the position that ATT had “no right whatsoever” to undercross their streets, and that they have an “absolute right to exclude” ATT from any use of public streets except on such terms as they may demand.
On November 2, 1987, the trial court entered an interlocutory order granting a preliminary injunction in favor of ATT which allowed them to “construct, maintain, lay, alter, bore or locate and use its fiber optic cable
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along, upon, under, and across any highway, street, road, or alley under the control or claimed control of the defendants.” Additionally, the injunction ordered arbitration between ATT and the defendant municipalities. Subsequently, defendants appealed from the interlocutory order and the appellate court affirmed that part of the injunction authorizing ATT’s use of the public streets within the municipalities and reversed the part ordering arbitration to take place. American Telephone Telegraph Co. v. Village of Arlington Heights (1988), 174 Ill. App.3d 381 appeal denied (1988), 123 Ill.2d 555.
On May 2, 1989, ATT filed a motion before the trial court to convert the preliminary injunction to a permanent injunction. A permanent injunction was entered and the trial court determined that ATT had the right to locate the fiber optic cable beneath the streets of the defendant municipalities pursuant to the Telegraph Act (Ill. Rev. Stat. 1987, ch. 134, par. 4) and the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 111 2/3, par. 13-202). Additionally, the court ruled that ATT had the right to operate the cable without interference or disruption by the defendant municipalities. Defendants appealed, and the appellate court, with one justice dissenting, affirmed the trial court, concluding that municipalities do not have an absolute right to require a franchise agreement of a telephone company and that such an agreement is not a necessary precondition for the utilization of the public streets by ATT. (216 Ill. App.3d 474.) We now affirm the appellate court.
DISCUSSION
Defendants claim that they have the right to require revenue-raising franchise agreements or tolls as a precondition to the use of public streets by telephone companies. While municipalities have the authority to enact
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regulations relating to the use of the public streets and to charge reasonable regulatory fees for such use, they do not have the authority to hold the public streets hostage as a means of raising revenue. (Village of Lombard v. Illinois Bell Telephone Co. (1950), 405 Ill. 209, 217-18.) Defendants, by classifying their current attempt to raise revenue as franchise agreements, are attempting to circumvent both this court’s previous holdings prohibiting municipalities from charging rent for the use of city streets (Village of Lombard, 405 Ill. at 216) and the statutory requirement that the taxing of a telecommunications company must be based upon the business originating within the corporate limits of the municipality (Ill. Rev. Stat. 1987, ch. 24, par. 8-11-2(1)).
It needs to be borne in mind that ATT is not seeking permission to use city streets for the operation of a business within city limits such as a garbage collection service, a street railway, a cable TV franchise, etc. That is to say, they do not seek to garner revenue from the use of city streets. What is sought here is different in character from what would normally be considered a franchise-type business seeking protection, licensing and special privileges for the use of city streets. No person or entity within any of the municipalities in this case is to be connected to or have the use of the fiber optic cable which is sought to be laid. All that plaintiffs seek here is to get from one side of town to the other.
Regardless of the name given to this particular method of revenue enhancement, whether it is called a franchise, a rental fee or a tax, it is, in its essence, a toll. Parenthetically, it is to be noted that there are 1,281 cities and villages in Illinois, 102 counties and 1,434 townships, each of which maintains travelled ways. If each of these governmental units had the right to charge tolls for conduits going under and over their streets, the
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effect would amount to legalized extortion and a crippling of communication and commerce as we know it.
Municipalities do not possess proprietary powers over the public streets. They only possess regulatory powers. The public streets are held in trust for the use of the public. While numerous powers and rights regarding public streets have been granted to municipalities by the General Assembly, they are all regulatory in character, and do not grant any authority to rent or to lease parts, or all, of a public street. Village of Lombard, 405 Ill. at 216.
Defendants cite several cases as authority for the proposition that the right to demand a franchise fee is an exercise of the municipalities’ proprietary power over public property. The principal cases relied on by the defendants, however, were all decided prior to this court’s decision in Village of Lombard v. Illinois Bell Telephone Co. (1950), 405 Ill. 209. (See City of Springfield v. Inter-State Independent Telephone Telegraph Co.
(1917), 279 Ill. 324; Chicago General Ry. Co. v. City of Chicago (1898), 176 Ill. 253.) In Village of Lombard, this court held that the powers a municipality has over its streets are all regulatory in character and a municipality has no authority to rent part or all of the public streets. (Village of Lombard, 405 Ill. at 216.) It has been argued that the Lombard
decision is no longer good law, because five years after it was announced, the General Assembly amended the Revised Cities and Villages Act to include a provision allowing municipalities the right to collect compensation for the use of public streets. (Ill. Rev. Stat. 1955, ch. 24, par. 23-113.) Today the relevant statutory section provides:
“Any of the taxes enumerated in this section may be in addition to the payment of money * * * to the municipality * * * as compensation for the use of its streets * * *
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or installation and maintenance * * * thereunder of * * * wires * * *.” (Ill. Rev. Stat. 1987, ch. 24, par. 8-11-2(4).)
This section neither allows municipalities to tax the user of public streets nor does it allow the taxation of wires under the streets. This section is purely regulatory in nature. The General Assembly, at the same time that the above provision was added, also added what is today section 8-11-2(1) of the Illinois Municipal Code. Section 8-11-2(1) authorizes municipalities to impose a 5% tax on the gross receipts of a person engaged in the business of transmitting electronic messages. The gross receipts to which the tax applies are limited to the business which originates within the corporate limits of the municipality. (Ill. Rev. Stat. 1987, ch. 24, par. 8-11-2(1).) If the General Assembly intended to give municipalities the right to use the public streets as revenue-raising devices, it would have been unnecessary to explicitly provide for a way to tax electronic messages and to impose a 5% cap upon such a tax. It is reasonable to conclude that the General Assembly, by allowing municipalities to collect money for the use of streets and the installation and maintenance of wires under the streets, simply reinforced the regulatory power municipalities have over public streets. To conclude otherwise would render the express taxing provisions meaningless. Thus, municipalities only have regulatory powers over public streets and cannot charge tolls for their use.
The character of defendants’ last proposal made to ATT did not meet the scope of the permissible tax allowed by section 8-11-2(1) (Ill. Rev. Stat. 1987, ch. 24, par. 8-11-2(1)). Rather than being based upon the business originating within the corporate limits of the various municipalities as required by the statute, it attempted to collect $2.50 for each foot of cable installed within the municipalities, regardless of whether the cable was located on public or private property. The villages of
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Arlington Heights and Palatine are both home rule municipalities. As such, their powers are to be liberally construed. (Ill. Const. 1970, art. VII, § 6.) However, the power of a home rule municipality to levy a tax is limited to issues of local rather than statewide concern. (People ex rel. Bernardi v. City of Highland Park (1988), 121 Ill.2d 1, 12-13.) A telephone company which is running a fiber optic cable across the State and through various municipalities is not a matter of purely local concern and is an issue of statewide concern. Thus, the fact that the villages of Arlington Heights and Palatine are home rule municipalities does not permit this type of franchise agreement to be imposed upon ATT.
Defendants rely heavily upon City of Geneseo v. Illinois Northern Utilities Co. (1941), 378 Ill. 506, for the proposition that a franchise agreement may be required prior to a public utility’s utilization of the public streets. While this court i Geneseo stated that the Public Utilities Act did not affect the power of municipalities to permit or refuse a franchise to a public utility (Geneseo, 378 Ill. at 530), that case did not involve the power of a municipality to tax for the use, or rent, of the public streets. Additionally, Geneseo did not involve a telephone company or the Telephone Company Act. Ill. Rev. Stat. 1987, ch. 134, par. 20.
Under section 4 of the Telephone Company Act, telephone companies are granted eminent domain authority over private property and the power to use any public ground of this State which is necessary for the extension of telephone poles, wires, cables or other appliances. (Ill. Rev. Stat. 1987, ch. 134, par. 20.) In relevant part, section 4 provides:
“Every * * * [telephone] company may, when it shall be necessary for the construction * * * of its telephone system * * * enter upon, take or damage private property * * * and every such company is authorized to construct * * *
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poles, wires, cables and other appliances as a proper use of highways, * * * under and across any highway, street, alley, water or public ground
in this state, but so as not to incommode the public in the use thereof: Provided, that nothing in this act shall interfere with the control now vested in cities, * * * and villages in relation to the regulation of the poles, wires, cables and other appliances, and provided, that before any such lines shall be constructed along any such highway it shall be the duty of the telephone company * * * to give to the highway commissioners having * * * control over the road * * * along * * * which such line is proposed to be constructed [10 days written notice of the company’s purpose and intention. It is then the duty of the highway commissioners] to specify the portion of such road or highway upon which the said line may be placed * * *; [if the] highway commissioners shall, for any reason, fail to make such specification within ten days after the service of such notice, then the * * * [telephone] company * * * may proceed to place * * * its * * * abutments so as not to interfere with other proper uses of said road or highway.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 134, par. 20.)
This section gives telephone companies the authority to lay wires under public streets.
Defendant municipalities, relying on section 4 of the Telegraph Act (Ill. Rev. Stat. 1987, ch. 134, par. 4), argue that this statute does not give ATT the authority to undercross their streets without prior consent. Section 4 of the Telegraph Act states that telegraph companies must receive written consent of a municipality prior to the construction of telegraph equipment. (Ill. Rev. Stat. 1987, ch. 134, par. 4.) Section 20 of the Telephone Act states that telephone companies may begin construction of a telephone line along a highway after giving the appropriate highway commissioners 10 days’ written notice. (Ill. Rev. Stat. 1987, ch. 134, par. 20.) Since highway commissioners do not have control over municipal streets which are not part of the State or
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county highway system, the 10-day notice provision does not apply to proposed construction of telephone lines along such streets. (People ex rel. Shallberg v. Central Union Telephone Co.
(1908), 232 Ill. 260.) Thus, a telephone company must seek municipal consent prior to constructing its equipment along or under municipal streets. However, the consent of the municipality may not be unreasonably withheld, or refused for an improper reason. Collection of a toll is an improper reason. If the construction request is reasonable in light of factors such as public health, safety, necessity and convenience, municipal consent must be promptly given. (City of Vandalia v. Postal Telegraph-Cable Co. (1916), 274 Ill. 173, 176-77.) Analogous to the aforesaid 10-day notice requirement, municipalities should reasonably respond to a telephone company’s request within 10 days. Since the record reveals that ATT’s proposed undercrossing of municipal streets would not interfere with the public health, safety, necessity or convince, consent should have been given.
While ATT and the defendant municipalities could have voluntarily entered into a contractual relationship under which ATT would have agreed to pay for the undercrossing of public streets, absent such an agreement, defendants do not have the right to force ATT to pay a toll under the guise of a franchise agreement. Additionally, it is immaterial that the defendants have been able to coerce other companies into similar agreements or that ATT has been coerced into such agreements in the past. The mere fact that ATT chose not to litigate every wrong thrust upon it does not prevent it from asserting its rights at the present time. Defendants’ only interest in the public streets is regulatory in nature. As such, any payment to which defendants would be entitled should only cover actual costs, including inspection,
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regulatory, administrative and repair costs associated with the tunneling under public streets.
The fact that ATT seeks to undercross certain streets in this case with a fiber optic cable results in no intrusion on, or diminution of, the use or safety of the streets. The fact that ATT is a for-profit corporation is of no moment. One may reasonably ask, if the Salvation Army or the Sisters of St. Francis were proposing to lay a fiber optic cable, would the law be otherwise? It would not. Municipal governments, whether home rule or non-home-rule, are creatures of the Illinois Constitution. (Ill. Const. 1970, art. VII, §§ 6, 7.) They have no other powers. Nothing in the Illinois Constitution or Illinois statutory law authorizes cities and villages to charge tolls for the crossing of the streets. If the plaintiffs were carrying phone messages in trucks commuting between Glenview and Rockford (if such can be imagined), instead of carrying the messages on a fiber optic cable, the municipalities would not be authorized to stop the plaintiffs’ trucks and charge them tolls as they crossed municipal boundaries. The streets exist for the benefit of the entire public and are subject only to reasonable regulations regarding usage. Streets do not exist and were not created as either obstructions or revenue-producing property for municipalities.
For the reasons set forth above, we affirm the judgment of the appellate court.
Affirmed.
JUSTICE McMORROW took no part in the consideration or decision of this case.
JUSTICE FREEMAN, specially concurring:
Today this court holds municipalities may not exact rent from telecommunications companies met with the obstacle of crossing public streets in the laying of fiber
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optic cable along private rights of way. I agree. I join in the conclusion that plaintiffs, collectively referred to as ATT, can only be charged fees associated with the cost of installing the cable beneath the pavement.
But my agreement is limited to the facts of this case. I believe there is too little to tie ATT to the municipalities by virtue of the particular presence of cable to justify fees amounting to rent. The communications service made possible through the network of cable does not originate or terminate within the municipal boundaries. It merely happens that completion of the network requires ATT to snake the cable alongside railroad track into and out of the municipalities, inevitably intersecting public streets. ATT is just passing through, as it were.
I am reluctant, however, to preclude the possibility that different circumstances could justify the types of fees sought to be imposed here. The closer a private entity is joined, economically speaking, to a municipality through use of municipal property, the stronger the argument for fees amounting to rent becomes. A realistic uncertainty as to the nature and extent of future uses of municipal property convinces me that the facts of this case provide no reason to assert such fees could never be proper.
The particular facts also suggest a second, separate point. The majority concludes municipalities do not enjoy proprietary power over public streets. That conclusion seems to beg a more fundamental question: Is a proprietary power implicated by the use at issue here?
The use is the existence of fiber optic cable buried beneath streets for a distance sufficient to traverse street width. Initial installation of the cable is not the use that it is argued justifies the fees sought to be imposed. The use is the presence of cable.
That presence, without other circumstances marrying the use to the municipalities, does not seem to be a use
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of public property at all, to say nothing of it being an extraordinary one. Unquestionably, such use is different from that which this court has before encountered in determining the propriety of fees amounting to rent in connection with use of public streets. Such use can be characterized as one that compromises enjoyment by the public of the whole of city streets for their normal object: facilitating travel.
For example, in City of Springfield v. Inter-State Independent Telephone Telegraph Co. (1917), 279 Ill. 324, an City of Springfield v. Postal Telegraph-Cable Co. (1912), 253 Ill. 346, rental fees imposed under a municipal ordinance were deemed proper where a telephone and telegraph company exclusively appropriated portions of streets with poles. In Chicago General Ry. Co. v. City of Chicago (1898), 176 Ill. 253, rental fees were held appropriate for the occupation of city streets by track for a street railway system. There, the court noted that the effect of the use on the public in part justified the fees imposed. Specifically, the railway system on streets designed for normal traffic interfered with normal travel and would encourage avoidance of that street. (Chicago General Ry. Co., 176 Ill. at 257.) Greater expense and maintenance would be necessary for those streets where track was present as well as others used as alternative routes. Chicago General Ry. Co., 176 Ill. at 257.
Incidentally, this court’s decision in Broeckl v. Chicago Park District (1989), 131 Ill.2d 79, involving neither a street nor the provision of a public service, can be similarly explained. An occupied mooring impedes both the use of that mooring by other members of the boating public and public access, generally, to that portion of the body of water.
It seems right that a municipality, as an arm of the public, could impose fees amounting to rent to the extent that a private endeavor affects normal use of streets, ultimately
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the public’s property. (See Chicago Motor Coach Co. v. City of Chicago (1929), 337 Ill. 200, 206-07.) If the justification for such fees depends on recognizing a municipal proprietary power, so be it. If the power is to be limited to situations where the public’s use of public property is compromised (see Postal Telegraph-Cable Co., 253 Ill. at 353), fine. After all, as the majority accurately notes, a municipal government can be said to own public property only as trustee for the public.
But the facts of this case do not provide much reason to debate whether a municipal proprietary power exists. Existence of fiber optic cable under streets does not impede the public’s enjoyment of the whole of city streets for permitting travel over and upon. The need to declare that no municipal proprietary power exists is eliminated by the absence of a type of use sufficient to invoke it.
This court has spoken inconsistently on the issue. (Se Village of Lombard v. Illinois Bell Telephone Co. (1950), 405 Ill. 209, 216 (stating that powers legislatively granted to municipalities concerning streets are regulatory and do not grant any authority to rent parts of public streets); Inter-State Independent Telephone Telegraph Co., 279 Ill. at 327 (stating that fees amounting to rent for a public service corporation’s occupation of city streets is the exercise of a proprietary power); Postal Telegraph-Cable Co., 253 Ill. at 353 (stating that rental charges similar to those imposed on telegraph and telephone companies may be imposed on public service companies, not by way of rental but in the exercise of police power) Chicago General Ry. Co., 176 Ill. at 257 (stating that use of a graded street constitutes a bonus permitting a rental fee); see also Broeckl, 131 Ill.2d at 86, quoting Inter-State Independent Telephone Telegraph Co., 279 Ill. at 327.) The inconsistency is not remedied by the majority’s declaration today that no proprietary power exists. I would not discount such municipal power
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without greater exploration by the court as to why that should be so.
JUSTICE BILANDIC, dissenting:
As the sole survivor of the old majority (ATT v. Village of Arlington Heights (December 4, 1992), No. 72315), it is incumbent upon me to respond. (Justices Clark, Moran and Cunningham retired in December 1992.) The three-member old minority did not suffer any attrition. With the addition of two new members to their ranks, the old minority has been transformed into the new majority. I hasten to add my congratulations and respectful dissent.
The new majority opinion is substantially the same as th old dissent. The few changes did not, in my judgment, rehabilitate a fatally flawed argument.
There is no need to unduly burden this dissent with a restatement of the arguments made in the prior majority opinion, which is attached as an appendix to this dissent, since they can be incorporated by reference to the December 4, 1992, opinion. This dissent will be confined to additional argument.
I
It is significant to note that ATT is not being denied th ordinary use of the streets of any of the municipalities. The most casual observer would have little difficulty in observing ATT vehicles and personnel using the streets of the defendant-municipalities in an ordinary manner in common with other users.
The new majority opinion unwittingly authorizes ATT to levy a tax on the residents of the municipalities and exact a subsidy from them for the construction of a cable system so that ATT could achieve a maximum profit and an advantage over its competitors. To accomplish
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this end, the new majority has abandoned its judicial function and undertaken a legislative function.
In sum, ATT demands that the municipalities give it something for nothing while at the same time paying a private railroad a “substantial” amount of money for the same service. In addition, ATT would have to expend substantial sums of money to complete its cable system under any other option available to it. The municipalities are already financially strapped. The majority has given the green light to other private profit-making organizations to get in line and demand free service from municipalities upon whom they are conferring no benefit.
Commenting on “The Judge as a Legislator,” Justice Benjamin N. Cardozo offered this advice:
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to `the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.” B. Cardozo, The Nature of the Judicial Process 141 (1921).
The new majority’s opinion is unconstitutional in that it violates both the fundamental doctrine of the separation of powers and the fundamental rights guaranteed by the fourteenth amendment of the United States Constitution.
Under the guise of statutory construction, the majority has judicially rewritten fundamental Illinois law governing municipal powers and authority granted to municipalities through the Illinois Constitution of 1970 and through legislation passed by the General Assembly. The Illinois Constitution guarantees to every citizen of Illinois
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the constitutional right to a system of government based on the principles embodied in the separation of powers doctrine. Under this doctrine, each branch of our government is a co-equal branch with powers and authority of its own which cannot be encroached upon by the other branches. Under the separation of powers doctrine, the judiciary may not usurp or encroach upon the legislature’s powers or the legislative function. (Fergus v. Marks (1926), 321 Ill. 510, 513-14.) The constitutional right to a system of government which operates according to the separation of powers doctrine is a vested right of each citizen in Illinois and, as such, is a right of United States constitutional dimension entitled to Federal constitutional protection.
Home Rule Municipalities
Initially, it must be noted that home rule units did not exist in this State until after the ratification of the 1970 Illinois Constitution. As a result, all of the cases that specifically discuss municipal power and control over its streets, which precede the 1970 Constitution, involve only the statutory power of municipalities that were not home rule units. Consequently, those cases do not control the issue before this court with respect to the home rule defendant-municipalities.
As stated, the Illinois Constitution of 1970 established the existence, powers, and authority of home rule units in Illinois. (Ill. Const. 1970, art. VII, § 6.) Under the Illinois Constitution, home rule units may, subject to a few constitutional limitations, “exercise any power and perform any function pertaining to its government and affairs.” (Ill. Const. 1970, art. VII, § 6(a).) The constitution further mandates that the “[p]owers and functions of home rule units shall be construed liberally.” (Emphasis added.) (Ill. Const. 1970, art. VII, § 6(m).) These constitutional provisions
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were “written with the intention that home rule units be give the broadest powers possible. (Ill. Ann. Stat., 1970 Const., art. VII, § 6, Constitutional Commentary, at 24 (Smith-Hurd 1971).)” (Emphasis added.) (Scadron v. City of Des Plaines
(1992), 153 Ill.2d 164, 174-75.) The constitutional home rule provisions were designed to revolutionalize the relationship between the State and home rule units of local government Triple A Services, Inc. v. Rice (1989), 131 Ill.2d 217, 230.
The drafters of the constitution intended to grant home rule units greater power and autonomy than was previously enjoyed by non-home-rule units. (Kanellos v. County of Cook (1972), 53 Ill.2d 161, 166.) It was the intent of the drafters to grant home rule units the authority to exercise any power and perform any function concurrently with the State, unless the General Assembly specifically limits the concurrent exercise of such power or specifically declares that the State’s exercise is exclusive. (Ill. Const. 1970, art. VII, § 6(i); Kalodimos v. Village of Morton Grove (1984), 103 Ill.2d 483, 502-07.) “`”[H]ome rule units are supposed to be free to carry on activities that relate to their communities even if the state also is interested and is active in the area.”‘ (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill.2d 494, 510-11, quoting Baum, A Tentative Survey of Illinois Home Rule (Part 1): Powers and Limitations, 1972 U. Ill. L.F. 137, 155.)” (Scadron, 153 Ill.2d at 175.) As counsel to the constitutional convention’s Committee on Local Government, Professor Baum explained “that the government and affairs language of section 6 `does not contemplate substantial restraint added by judicial interpretation; indeed, it was designed to make this interpretation difficult if not impossible. A judicial preemption doctrine based upon the existence of legislative regulation was specifically frowned upon.‘ 1972 U. Ill. L.F. at 156.”
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(Emphasis added.) (Scadron, 153 Ill.2d at 175-76.) The constitutional intent and purpose of the home rule provisions was to severely limit the judiciary’s ability to preempt home rule powers through judicial interpretation of unexpressed legislative intent. (Scadron, 153 Ill.2d at 186.) In this case, the new majority has accomplished precisely what these constitutional provisions were designed to prevent: the new majority has, under guise of judicial interpretation and in the absence of any legislative indication, entirely denied and preempted fundamental home rule powers and authority.
Without citation to any authority, the new majority has determined for itself, in contravention of the separation of powers doctrine, that:
“[m]unicipalities do not possess proprietary powers over the public streets. They only possess regulatory powers.” (156 Ill.2d at 409.)
The new majority erroneously continues:
“While numerous powers and rights regarding public streets have been granted to municipalities by the General Assembly, they are all regulatory in character, and do not grant any authority to rent or to lease parts, or all, of a public street. Village of Lombard, 405 Ill. at 216.” 156 Ill.2d at 409.
In regards to home rule units, there are several fundamental flaws in the new majority’s assertions. First, the new majority has failed to distinguish between home rule municipalities and non-home-rule municipalities, which possess different powers and authority. Second, home rule units’ powers and authority are not derived from or dependent upon grants of authority from the General Assembly. (Triple A Services, Inc., 131 Ill.2d at 230.) Home rule units derive their powers and authority directly from the 1970 Constitution. (Triple A Services, Inc., 131 Ill.2d at 230.) Thus, the extent of home rule power is not determined or limited by the
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extent of powers that the General Assembly has granted to other municipal bodies. Third, Village of Lombard, the case cited by the new majority for its sweeping but erroneous proposition that municipalities have no power to rent or lease their property, was decided long before the ratification of the 1970 Constitution and its home rule provisions. Therefore, it provides no authority for the new majority’s assertion with respect to home rule municipalities.
It is clear that Village of Lombard does not encompass or control the issue before us with respect to the instant home rule municipalities. It is undisputed that Village of Lombard
involved a municipality that was not a home rule unit. Village of Lombard encompassed only the question of whether the village was properly exercising its statutory authority. Therefore, it provides no authority for the new majority’s assertion with respect to home rule municipalities. See Triple A Services, Inc., 131 Ill.2d at 231.
Contrary to the new majority’s unsupported, blanket assertion that municipalities have no proprietary power to enter into franchise agreements and charge a fee in the nature of rental for the extraordinary use of their streets, home rule municipalities, in matters pertaining to their government and affairs, possess the “same powers as the sovereign, except where such powers are limited by the General Assembly.” (Emphasis added.) (Triple A Services, Inc., 131 Ill.2d at 230; City of Urbana v. Houser
(1977), 67 Ill.2d 268, 273.) It cannot seriously be argued that the sovereign has no proprietary power over the extraordinary use of its streets for private gain. Likewise, a home rule municipality, in the absence of clear legislative preemption or limitation, possesses proprietary powers over its public property.
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Although home rule powers are not dependent upon any legislative grant of authority, the legislature has explicitly recognized a municipality’s proprietary powers over its public property on many occasions. (See, e.g., Ill. Rev. Stat. 1987, ch. 24, par. 11-74.2-10 (power to acquire and convey its property in redevelopment area to school or park authorities and charge any price agreed upon by the parties; power to grant easements to public utilities with or without charge); par. 11-74.2-14(1) (power to transfer and sell fee simple title, or any lesser estate, to real property in redevelopment area to, inter alia, private corporations); pars. 11-75-1, 11-75-2 (power to lease space over any street, alley or public place); par. 11-76-4.1 (power to sell surplus public real estate); par. 11-121-8 (power to, inter alia, lease subways for transportation purposes); par. 11-80-3 (power to prevent or remove encroachments or obstructions upon its streets and property).) In fact, the legislature has also recognized the power of municipalities to enter into franchise agreements with public utilities. See e.g., Ill. Rev. Stat. 1987, ch. 24, par. 11-117-6 (municipality may reserve rights in franchise granted to public utility company); par. 11-117-7 (municipality may acquire public utility operating under, inter alia, a franchise); par. 11-119.1-5(J) (municipal power agency may grant the use of any property or facility owned by it by franchise, lease or otherwise).
A home rule municipality’s power and authority is even broader than the above-cited proprietary powers granted by the legislature to other municipal bodies. As stated, home rule powers, in the first instance, were intended to be as broad as possible. Home rule municipalities may exercise any power and perform any function concurrently with the State, unless the legislature specifically limits the concurrent exercise of
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such power or specifically declares that the State’s exercise of such power is exclusive. (See Kalodimos, 103 Ill.2d at 502-07.) In the absence of express legislative action to limit or preempt home rule power, the power of the instant home rule municipalities to require ATT to enter into a franchise agreement and pay as rental a franchise fee for an easement in their streets is valid because it pertains to these municipalities’ “government and affairs.” This constitutional limitation on home rule powers has been interpreted to mean that “`”the powers of home-rule units relate to their own problems, not to those of the state or the nation.”‘ City of Des Plaines v. Chicago North Western Ry. Co. (1976), 65 Ill.2d 1, 5.” (Kalodimos, 103 Ill.2d at 501.) Whether a problem or issue is of statewide or local dimension must be decided “`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.'” Scadron, 153 Ill.2d at 176, quotin Kalodimos, 103 Ill.2d at 501.
The new majority merely asserts, without citation to any authority, that because ATT’s construction of its fiber optic cable across the State “is not a matter of purely local concern and is an issue of statewide concern,” home rule units have no power to impose a franchise agreement upon ATT for its extraordinary use of their streets. (156 Ill.2d at 411.) This court has repeatedly rejected the new majority’s premise that home rule powers may not extend to matters which touch issues of statewide concern. (See Scadron, 153 Ill.2d at 175.) Indeed, this court has repeatedly held that even matters extensively regulated by the State are matters which properly fall within the exercise of a home rule municipality’s power. (See, e.g., Scadron,
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153 Ill.2d 164 (home rule municipality may regulate outdoor advertising signs and displays even in the face of extensive Federal and State legislation); Kalodimos, 103 Ill.2d 483 (home rule unit may adopt gun control regulations even in the face of Federal and State constitutional provisions as well as extensive State legislation).) In fact, our constitution provides that home rule units may exercise powers concurrent with the State. Ill. Const. 1970, art. VII, § 6(i).
Requiring ATT to enter into a franchise agreement for the extraordinary use of their streets for private gain is a matter pertaining to the government and affairs of these home rule municipalities and, therefore, falls within the proper exercise of home rule powers. (See Ill. Ann. Stat., 1970 Const., art. VII, § 6, Constitutional Commentary, at 24 (Smith-Hurd 1971).) A municipality has a greater and more vital interest than the State in determining the conditions under which the public property located entirely within its boundaries may be used for private gain. Control over the use of a municipality’s streets has traditionally been vested in the local government. (See, e.g., Ill. Rev. Stat. 1987, ch. 24, par. 11-80-1 et seq.) Indeed, this court has recognized that the right to exercise control over the use of streets, including the right to grant or to withhold that use from utilities, is a matter of local rather than statewide concern. See Triple A Services, Inc., 131 Ill.2d at 237; City of Geneseo v. Illinois Northern Utilities Co.
(1941), 378 Ill. 506.
In the instant case, however, the new majority is even more blatantly remiss in its erroneous conclusion because the legislature has expressly indicated that it considers ATT’s use of a municipality’s streets to be an affair of the local government. The Telegraph Act expressly requires the public utility to obtain the municipality’s consent in order for it to lay its cable
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within the municipality’s boundaries. (Ill. Rev. Stat. 1987, ch. 134, par. 4; People ex rel. Shallberg v. Central Union Telephone Co. (1908), 232 Ill. 260, 275.) Additionally, the statute which grants ATT the authority to lay its cable expressly provides that the utility’s statutory authority shall not interfere with the control already vested in the municipalities. (Ill. Rev. Stat. 1987, ch. 134, par. 20 Shallberg, 232 Ill. at 276.) Therefore, it cannot seriously be argued that the conditions under which a municipality will allow a utility to use its streets in an extraordinary manner for private gain is not a matter of local concern subject to the home rule powers of the municipality.
Our courts have upheld similar acts as valid exercises of home rule powers. See, e.g., Crain Enterprises, Inc. v. City of Mound City (1989), 189 Ill. App.3d 130 (city ordinances granting a business a railroad franchise and vacating public streets for the economic benefit of the city and its citizens constituted legitimate exercises of city’s home rule powers, where streets were wholly within city borders and did not form link in State highway); Krughoff v. City of Naperville (1976), 41 Ill. App.3d 334
(ordinance requiring contribution of land, or money in lieu of land, for school and park sites as a condition to approval of a subdivision plat is a valid exercise of home rule powers) aff’d on other grounds (1977), 68 Ill.2d 352; see als Kalodimos, 103 Ill.2d at 501 (ordinance banning possession of operable handguns pertained to the municipalities’ “government and affairs”); City of Evanston v. Create, Inc. (1980), 84 Ill. App.3d 752
(residential landlord and tenant ordinance is a valid exercise of city’s home rule powers), aff’d (1981), 85 Ill.2d 101 City of Chicago v. Pioneer Towing, Inc. (1979), 73 Ill. App.3d 867
(ordinance requiring towing companies to bear the cost of posting signs indicating that
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unauthorized cars would be towed from premises which company serviced is a valid exercise of home rule powers).
Clearly, in light of the above, home rule units, in the first instance, have the constitutional authority to require a public utility to enter into a franchise agreement and to pay a rental fee for the extraordinary use of their streets for private gain. Such a requirement is a proper exercise of a home rule municipality’s proprietary power over its property and pertains to its “government and affairs.”
Separation of Powers
The new majority’s denial of this home rule power flies in face of constitutional provisions and amounts to a legislative act. Our 1970 Constitution provides that home rule powers and authority may only be limited or preempted by the General Assembly. (See Ill. Const. 1970, art. VII, §§ 6(h), (i).) Section 6(h) of article VII provides:
“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 * * *.” (Emphasis added.) (Ill. Const. 1970, art. VII, § 6(h).)
Section 6(i) of article VII provides:
“Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.” (Emphasis added.) Ill. Const. 1970, art. VII, § 6(i).
Pursuant to these constitutional provisions, the legislature
may only preempt or restrict home rule powers if it specifically and expressly states its intent to do so. (Scadron, 153 Ill.2d at 185-88; Kalodimos, 103 Ill.2d at 503; Stryker v. Village of Oak Park (1976), 62 Ill.2d 523,
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528; Rozner v. Korshak (1973), 55 Ill.2d 430, 435.) Nowhere in our statutes has the legislature expressly stated its intent to limit, deny, or preempt the proprietary powers of home rule units over their streets. (Cf. Scadron, 153 Ill.2d at 188-89; Rozner, 55 Ill.2d at 435.) It is only the new majority of this court that has done so in contravention of our constitutional home rule provisions and our legislature’s intent. The judiciary, however, has no power to limit, deny, or preempt valid home rule powers and authority. On the contrary, the home rule provisions were specifically drafted in their present form to eliminate the possibility that courts might preempt or limit home rule powers through judicial interpretation. Scadron, 153 Ill.2d at 175-76, 186.
The new majority’s judicial encroachment upon and usurpation of the legislature’s exclusive constitutional authority to limit home rule powers violates our State constitutional right to be governed by a system of government based upon the separation of powers. Article II, section 1, of the Illinois Constitution of 1970 provides:
“The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (Emphasis added.) (Ill. Const. 1970, art. II, § 1.)
As this court has previously stated:
“By [the Illinois constitution] the powers of the government of this State are divided into three distinct departments, — the legislative, executive and judicial, — and no person or collection of persons, being one of these departments, may exercise any power properly belonging to either of the others, except as expressly directed or permitted by the constitution. Neither of these three departments is subordinate to or may exercise any control over another except as is provided by the constitution. Their status is that of equality, each acting within its own sphere independent of each of the others, so long as
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its action does not exceed the powers confided to it, unless particular exceptions are made to this general rule by the constitution itself. The legislative department determines what the law shall be, the executive department executes or administers the law, and the judicial department construes and applies the law. Neither one of these departments can arrogate to itself any control over either one of the other departments in matters which have been solely confided by the constitution to such other department. The power to enact statutes is, clearly, solely a legislative power confided by the constitution to the legislature. The power to construe statutes is confided to the judiciary.” (Emphasis added.) (Fergus v. Marks (1926), 321 Ill. 510, 513-14.)
In holding that home rule municipalities have no proprietary power over their streets and may not require ATT to pay a franchise fee for its extraordinary use of their streets, the new majority has reached far beyond its judicial function and has usurped legislative authority to alter home rule powers, a role specifically reserved to our legislature by our constitution. Clearly, in arrogating to itself the legislature’s constitutional authority to alter home rule powers, the new majority violates our State constitutional right to be governed by a system of government based upon the separation of powers. This denial of our State constitutional right is a clear violation of our fourteenth amendment due process rights and cannot be tolerated.
Fourteenth Amendment Due Process A
The new majority’s violation of our constitution’s separation of powers provision, in turn, violates the fourteenth amendment due process rights of all Illinois citizens. An issue concerning the separation of powers “reaches the very foundation principles upon which our government is based. It is no less delicate than fundamentally
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important.” (People v. Bissell (1857), 19 Ill. 229, 230.) The ultimate purpose of a system of government based on separated powers and the structural protections incorporated therein i the protection of liberty and the security of the governed.
(Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc. (1991), 501 U.S. 252, 272, 115 L.Ed.2d 236, 256, 111 S.Ct. 2298, 2310; Bowsher v. Synar
(1986), 478 U.S. 714, 730, 92 L.Ed.2d 583, 599, 106 S.Ct. 3181, 3190.) Illinois citizens’ right to be governed by a system of separated powers is a matter of liberty — a substantive due process right — granted to us by the fundamental law of our State constitution.
Furthermore, our State constitution’s system of government is also a due process property right. As the Supreme Court has stated:
“[Due process] [p]roperty interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” (Board of Regents of State Colleges v. Roth
(1972), 408 U.S. 564, 577, 33 L.Ed.2d 548, 561, 92 S.Ct. 2701, 2709.)
Later, in limiting the reach of Roth, the Supreme Court further explained:
“It is apparent from our decisions that there exists a variety of interests which are difficult of definition but are nevertheless comprehended within the meaning of either `liberty’ or `property’ as meant in the Due Process Clause. These interests attain this constitutional status by virtue of the fact that they have been initially recognized and protected by state law, and we have repeatedly ruled that the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter that protected status. * * *
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In each of these cases [which recognized a due process violation], as a result of the state action complained of, a right or status previously recognized by state law was distinctly altered or extinguished. It was this alteration, officially removing the interest from the recognition and protection previously afforded by the State, which we found sufficient to invoke the procedural guarantees contained in the Due Process Clause of the Fourteenth Amendment.” (Paul v. Davis (1976), 424 U.S. 693, 710-11, 47 L.Ed.2d 405, 419-20, 96 S.Ct. 1155, 1165.)
The interest of Illinois citizens in being governed by a government of separated powers is much “more than an abstract need or desire for it.” (Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 577, 33 L.Ed.2d 548, 561, 92 S.Ct. 2701, 2709.) So too, our interest is “more than a unilateral expectation of it.” (Roth, 408 U.S. at 577, 33 L.Ed.2d at 561, 92 S.Ct. at 2709.) Indeed, the right to be governed by a government of separated powers is a right granted to us by our State constitution. As such, it is a fundamental, vested right to which each citizen of Illinois has a “legitimate claim of entitlement” and which rises to fourteenth amendment constitutional dimension. (Roth, 408 U.S. at 577, 33 L.Ed.2d at 561, 92 S.Ct. at 2709 Medina v. Rudman (1st Cir. 1976), 545 F.2d 244; see also Springer v. Philippine Islands (1928), 277 U.S. 189, 72 L.Ed. 845, 48 S.Ct. 122.) The new majority’s violation of our State constitution’s separation of powers provision constitutes a clear violation of our fourteenth amendment due process rights and cannot be tolerated.
B
The new majority, by its opinion, is, in effect, levying a tax upon the citizens of the defendant municipalities. Pursuant to the majority’s mandate, these municipalities must grant ATT a valuable easement, an estate in land, for free. Generally, the grantor of an easement is
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entitled to receive consideration in return for such a grant. This is true even in the instant case where ATT has paid a substantial sum of money to the railroad for its grant of an easement to ATT. The new majority’s opinion, however, requires the municipalities to grant ATT an easement and receive nothing in return. The new majority’s opinion, in effect, deprives the municipalities of revenue they otherwise would have received. The new majority is forcing these municipalities to subsidize ATT.
Since the municipalities hold their streets in trust for the benefit of their citizens, the forced subsidy, in effect, amounts to an exactment of a tax upon the local, individual inhabitants of the defendant municipalities who receive no benefit. The new majority’s imposition of this tax is in the nature of a taking, without just compensation, for a private purpose and runs afoul of the fourteenth amendment rights of these citizens in numerous respects.
As this court has stated:
“It is a violation of the due process of law clause of the National and State constitutions to take a citizen’s money from him under the guise of taxes for any other than a public purpose.” Chicago Motor Club v. Kinney (1928), 329 Ill. 120, 130.
See Spencer v. Merchant (1888), 125 U.S. 345, 353, 31 L.Ed. 763, 767, 8 S.Ct. 921, 925.
The Supreme Court has stated:
“The due process of law clause contains no specific limitation upon the right of taxation in the states, but it has come to be settled that the authority of the states to tax does not include the right to impose taxes for merely private purposes. * * * `In the Fourteenth Amendment the provision regarding the taking of private property is omitted, and the prohibition against the state is confined to its depriving any person of life, liberty or property, without due process of law. It is claimed, however, that
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the citizen is deprived of his property without due process of law, if it be taken by or under state authority for any other than a public use, either under the guise of taxation or by the assumption of the right of eminent domain.'” Green v. Frazier
(1920), 253 U.S. 233, 238-39, 64 L.Ed.2d 878, 881, 40 S.Ct. 499, 501, quoting Fallbrook Irrigation District v. Bradley (1896), 164 U.S. 112, 155, 158, 41 L.Ed. 369, 387, 388, 17 S.Ct. 56, 61, 63.
The result of the new majority’s opinion is solely a private benefit to ATT. The legislature has already granted telephone companies like ATT the power of eminent domain to acquire easements from private property owners necessary to the construction of its cable. Along with this power, however, comes the corresponding duty to provide just compensation. The utility’s statutory power of eminent domain, however, does not extend to municipal property. The municipalities neither solicited nor invited ATT to use their streets. They were content to be left alone. However, it was ATT which chose to go through the municipalities because it was more profitable for it and would give it an advantage over its competition.
Although it admits to paying a “substantial” fee to a railroad for an easement, ATT refuses to pay any compensation to the municipalities for the extraordinary use of their streets. ATT could have avoided going through the municipalities by exercising its power of eminent domain to obtain easements from private property owners beyond the municipal boundaries. However, ATT would be required to pay “just compensation” for those easements. It would also be delayed because of the constitutional requirement of compliance with “due process” in any eminent domain proceedings against private property owners. The end result of the new majority’s opinion is to save ATT both money and time.
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Clearly, saving a private, profit-motivated company money and time does not serve any public purpose. Therefore, the new majority’s opinion exacts a tax from the municipal inhabitants in violation of their fourteenth amendment due process rights.
II Conclusion
For the foregoing reasons, I respectfully dissent. Accordingly, I would reverse the decisions of the appellate and circuit courts.
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