Northern Illinois Builders Ass'n v. City of St. Charles
Annotate this Case
July 6, 1998
No. 2--97--0847
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
NORTHERN ILLINOIS HOME BUILDERS ) Appeal from the Circuit
ASS'N; GALLANT HOMES, INC.; THE ) Court of Kane County.
KRUGHOFF COMPANY; SHO DEEN, INC.; )
JOE KEIM BUILDERS, INC.; KEIM )
CORPORATION; and HAVLICEK BUILDERS, )
INC., )
)
Plaintiffs-Appellants, ) No. 92--MR--0013
)
v. )
)
THE CITY OF ST. CHARLES, )
)
Defendant-Appellee ) Honorable
) R. Peter Grometer and
(John R. Hall & Sons, Inc., ) Timothy Q. Sheldon,
Plaintiff). ) Judges, Presiding.
_________________________________________________________________
JUSTICE McLAREN delivered the opinion of the court:
Plaintiffs Gallant Homes, Inc.; The Krughoff Company; Sho
Deen, Inc.; Joe Keim Builders, Inc.; Keim Corporation; and Havlicek
Builders, Inc., (collectively the Builders) and plaintiff Northern
Illinois Home Builders Association appeal the trial court s
dismissal of the plaintiffs' second amended complaint seeking a
declaratory judgment that the defendant's ordinances mandating an
electric service connection fee is unconstitutional and invalid.
We reverse in part, affirm in part, and remand for further
proceedings.
Since 1892, the defendant, the City of St. Charles, a non-
home-rule municipality, has operated its own electric utility
system. The defendant, the sole provider of electrical current to
residences within St. Charles, buys electrical energy from
Commonwealth Edison at wholesale and distributes electricity to
customers through facilities owned by the defendant. The
defendant s electric utility system is financed by retained
earnings, not by bonds. Prior to 1972 the cost of connecting new
customers to the system was paid for by the income from the sale of
electric energy.
In 1990 the defendant adopted ordinance 1990-M-36 (the old
ordinance) (St. Charles Municipal Code 13.08.150 (passed April 16,
1990)), which provided that the cost of connecting new customers to
the system would be paid for by the new customers. Under this old
ordinance, new customers paid one charge, which was based on
standard increments of service capacity, i.e., $1,200 for 100 amps,
$2,400 for 200 amps, $4,800 for 400 amps.
In counts I and II, the plaintiffs alleged that the Builders
built single-family residential homes within the defendant s
corporate borders. The plaintiffs alleged that the Builders paid
the connection fees assessed by the defendant when they obtained
building permits. The complaint also alleged that the Builders had
an ownership interest in the property when they paid the connection
fees. Further, all the Builders, except The Krughoff Company and
Havlicek Builders, Inc., alleged that they continued to have a
property interest in the homes in which they paid the connection
fees. The plaintiffs sought a declaration from the court that the
old ordinance was invalid and an order for the return of the fees
with interest.
On January 7, 1992, the plaintiffs and John R. Hall & Sons,
Inc., filed a complaint for declaratory judgment against the
defendant. The complaint challenged the validity and
constitutionality of the defendant s ordinance. The trial court
denied the defendant s motion to dismiss, but then sua sponte
requested that the plaintiffs and John R. Hall & Sons, Inc., amend
their complaint. The plaintiffs and John R. Hall & Sons, Inc.,
filed an amended complaint for declaratory judgment on December 16,
1992. On December 21, 1992, the defendant adopted the new
ordinance.
On December 21, 1992, the defendant adopted ordinance 1992-M-
71 (the new ordinance) (St. Charles Municipal Code 13.08.135
(passed December 21, 1992)), which amended the old ordinance and
charged new customers two separate charges for connection, namely,
a service origination charge "of $1,500 plus four and one-half
percent (4«%) per annum from January 1, 1993 until paid" and a
service enrollment charge. The service origination charge is the
cost of the hookup from the individual lot to the electrical
facilities within the subdivision. The service enrollment charge
is the cost of the hookup from the subdivision to a transformer,
plus the cost of processing a service application. The defendant
passed the new ordinance in reliance on a study that revealed that
the connection charge under the old ordinance did not cover the
actual costs of connecting new customers to the system. As a
result, the existing ratepayers bore some of the connection costs.
On December 20, 1993, the plaintiffs and John R. Hall & Sons,
Inc., filed their second amended complaint for declaratory
judgment, challenging the validity of both the new and old
ordinances. The plaintiffs and John R. Hall & Sons, Inc., repeated
counts I and II contained in their amended complaint and alleged in
counts III and IV that, from December 21, 1992, through July 16,
1997, the Builders continued to build single-family residential
homes within the defendant s corporate borders. The plaintiffs and
John R. Hall & Sons, Inc., further alleged that the Builders paid
the connection fees in accordance with the new ordinance and that
if they did not pay the connection fees under both the old and new
ordinances they would not be able to obtain a building permit,
resulting in a disastrous effect on their business. Thus, they
paid the fees under protest, compulsion, and duress.
The defendant filed an answer to the second amended complaint
and on January 26, 1995, filed a section 2--619(a)(9) motion (735
ILCS 5/2--619(a)(9) (West 1994)) to dismiss counts I and II of the
complaint, alleging that the plaintiffs lacked standing to
challenge the validity and constitutionality of the old ordinance
and that the repeal of the old ordinance rendered the counts moot.
The motion to dismiss also sought the dismissal as plaintiffs of
Northern Illinois Home Builders Association and John R. Hall &
Sons, Inc., alleging that they had no standing because they had not
paid a connection fee.
The plaintiffs and John R. Hall & Sons, Inc., filed a motion
to strike the defendant's motion to dismiss, arguing that the
defendant s motion was untimely. On May 9, 1995, after a hearing,
the trial court denied the motion to strike the defendant s motion
to dismiss and granted the defendant s motion to dismiss counts I
and II of the complaint based on the plaintiffs' and John R. Hall's
lack of standing. The trial court also dismissed Northern Illinois
Home Builders Association from all counts for lack of standing and
granted John R. Hall & Sons motion to voluntarily dismiss.
On June 8, 1995, the defendant filed a motion for partial
summary judgment pursuant to section 2--1005 of the Code of Civil
Procedure (735 ILCS 5/2--1005 (West 1994)). The motion, directed
at the remaining counts III and IV, addressed the sole issue of
whether the defendant had the statutory authority to enact and
impose electrical connection fees under the new ordinance. The
plaintiffs filed a cross-motion for partial summary judgment.
After a hearing on February 29, 1996, the trial court granted
the defendant's motion for partial summary judgment and denied the
plaintiffs motion for partial summary judgment. The findings were
set forth in a letter opinion. On March 18, 1996, the trial court
entered an order reflecting its findings.
On July 16, 1996, the defendant amended its motion for summary
judgment directed at the remaining issue of whether the connection
fee was reasonable. The trial court granted the motion and
dismissed all counts of the plaintiffs second amended complaint
with prejudice. The plaintiffs timely filed this appeal.
Initially, we address the plaintiffs' motion to strike
portions of the defendant's brief. The plaintiffs urge us to
strike the portion of the defendant's brief that espouses the
theory that a contract existed in which the Builders impliedly
agreed to pay the connection fee. The plaintiffs argue that the
defendant failed to raise the contract issue in the trial court
and failed to file complete certified copies of the old and new
ordinances.
It is well settled that an appellee may urge any point in
support of the judgment on appeal that is supported by the record
without regard to whether the point was raised before the trial
court. Mayfield v. ACME Barrel Co., 258 Ill. App. 3d 32, 37
(1994). In defendant's motion for partial summary judgment and
motion for summary judgment, the defendant alleged that it had the
authority to pass the new ordinance. The defendant then attached
the procedures used by the defendant in providing electric service.
The procedure includes the acceptance of a contract by customers
seeking connection to the electric utility service. In addition,
the defendant attached two such contracts between the defendant and
Joe Keim Builders, Inc., and Sho Deen, Inc. Because the record
contains support for the defendant's argument regarding a contract,
we deny the plaintiffs motion to strike this portion of the
defendant's brief.
Next, the plaintiffs urge us to strike the portion of the St.
Charles Municipal Code that provides that the rules and regulations
contained in the ordinance will be part of contracts with customers
who purchase electricity from the defendant. An appellate court
may take judicial notice of an ordinance raised on appeal by an
appellee even though the appellee failed to raise the ordinance in
the trial court. Szczurek v. City of Park Ridge, 97 Ill. App. 3d
649, 658 (1981); 735 ILCS 5/8--1001, 8--1002 (West 1996). Thus, we
deny the plaintiffs' motion to strike this portion of the
defendant's brief.
Lastly, the plaintiffs urge us to strike the portion of the
defendant's brief that discusses a trial court decision, West v.
Batavia, No. 84--MR--213 (Cir. Ct. Kane Co.). In deciding this case
below, the trial court cited No. 84--MR--213 and adopted its
reasoning. Because the case is contained in the record and the
defendant does not claim that it is binding upon this court, we
deny the plaintiffs' motion to strike the portion of the
defendant's brief that discusses this case. We now address the
merits of the plaintiffs' appeal.
The standard guiding our review of the trial court's decision
to grant the defendant s section 2--619 motions (735 ILCS 5/2--619
(West 1994)) is clear. Section 2--619(a)(9) of the Code of Civil
Procedure provides for dismissal if "the claim asserted against
defendant is barred by other affirmative matter avoiding the legal
effect of or defeating the claim." 735 ILCS 5/2--619 (West 1994).
Thus, the moving party admits the legal sufficiency of the
complaint but asserts an affirmative defense or other matter that
avoids or defeats the claim. Brock v. Anderson Road Ass'n, 287
Ill. App. 3d 16, 21 (1997).
For purposes of section 2--619 motions, all well-pleaded facts
in the complaint are deemed admitted (Sisk v. Williamson County,
167 Ill. 2d 343, 346 (1995)), and only the legal sufficiency of the
complaint is at issue (Brock, 287 Ill. App. 3d at 21). However,
exhibits attached to the complaint become part of the complaint and
will also be considered. Brock, 287 Ill. App. 3d at 21. Thus,
"the trial court may consider pleadings, depositions, and
affidavits." Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995).
Further, an exhibit attached to a complaint controls, and a motion
to dismiss does not admit allegations of the complaint if such
allegations are in conflict with the facts disclosed in the
exhibit. Brock, 287 Ill. App. 3d at 21. We review the granting of
a section 2--619 motion to dismiss de novo. Kedzie & 103rd
Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993);
Brock, 287 Ill. App. 3d at 21. "The question on appeal is 'whether
the existence of a genuine issue of material fact should have
precluded the dismissal or, absent such an issue of fact, whether
dismissal is proper as a matter of law.' " Zedella, 165 Ill. 2d at
185-86, quoting Kedzie, 156 Ill. 2d at 116-17.
First, the plaintiffs argue that the trial court erred by
dismissing counts I and II for lack of standing. The plaintiffs
argue that, since the Builders paid taxes under the old ordinance
and now assert that the ordinance was invalid, they have presented
a justiciable issue. The defendant argues that the Builders lack
standing because they admitted in an interrogatory that they sold
the homes for which they paid the connection fee under the old
ordinance and offered no evidence that they retained the right to
a refund. We agree with the plaintiffs.
The doctrine of standing seeks to insure that courts decide
actual controversies and not abstract questions. People v.
$1,124,905 U.S. Currency and One 1988 Chevrolet Astro Van, 177 Ill. 2d 314, 328 (1997). It is well established that a court may
not address the constitutionality of a statute unless the party
challenging the statute has standing to challenge it. People v.
Capitol News, Inc., 137 Ill. 2d 162, 169 (1990). A plaintiff
seeking a declaratory judgment has standing to challenge the
constitutionality of a statute if he presents an actual controversy
in which he is an interested party with a personal claim, status,
or right. Kluk v. Lang, 125 Ill. 2d 306, 314 (1988). The
requirement that a controversy be "actual" is meant to insure that
the underlying facts and issues of the case are not moot or
premature, but it is not meant to preclude a valid controversy from
being litigated. Messenger v. Edgar, 157 Ill. 2d 162, 170-71
(1993). In addition, the plaintiff "must have sustained, or be in
immediate danger of sustaining, a direct injury as a result of
enforcement of the challenged statute." Messenger, 157 Ill. 2d at
171. Further, the grant of the declaratory judgment must be
substantially likely to prevent or redress such injury. Messenger,
157 Ill. 2d at 170.
The plaintiffs alleged in their second amended complaint that
the Builders paid the connection fees under the old ordinance.
Although we have not found a case that expressly states that a
party who paid an allegedly invalid charge or tax has standing to
challenge the charge or tax, this can be inferred by our supreme
court's decision in Northern Illinois Home Builders Ass'n, Inc. v.
County of Du Page, 165 Ill. 2d 25 (1995).
In Northern Illinois Home Builders Ass'n, our supreme court
addressed the constitutionality of fees paid by one of the
plaintiffs and exacted by the defendants pursuant to the challenged
ordinances. The court addressed the merits of the case without
addressing the issue of standing, held that the fee at issue was
invalid, and ordered that the monies collected be returned to a
home builder who paid the fee. Northern Illinois Home Builders
Ass'n, 165 Ill. 2d at 50. Because a court may not address the
constitutionality of a statute unless the party challenging the
statute has standing, we infer from the court's decision that the
plaintiffs in Northern Illinois Home Builders Ass'n had standing.
See Capitol News, 137 Ill. 2d at 169.
Further, according to Northern Illinois Home Builders Ass'n,
if the old ordinance is held invalid, the Builders in this case
will be entitled to a refund. See Northern Illinois Home Builders
Ass'n, 165 Ill. 2d at 35-36. Thus, the Builders have sustained a
direct injury as a result of the enforcement of the challenged
ordinance, and the grant of the declaratory judgment will redress
such injury. See Messenger, 157 Ill. 2d at 170. Accordingly, the
Builders have standing to challenge the constitutionality and
validity of the old ordinance, and the trial court's decision to
grant the defendant's motion to dismiss counts I and II for lack of
standing was improper.
Citing Bishop v. Village of Brookfield, 99 Ill. App. 3d 483
(1981) and Vulcan Materials Co. v. County of Will, 61 Ill. App. 3d
925 (1978), the defendant argues that the Builders do not have
standing because they sold the homes for which they paid the
connection fees under the old ordinance. According to the
defendants, since the Builders failed to reserve their rights to a
refund, the right passed to the subsequent purchasers of the homes.
The cases cited by the defendant were also relied on by the trial
court in reaching its decision. However, these cases are
distinguishable from the case at bar.
In Bishop, the appellate court permitted homeowners to
intervene in a case in which the builders of the homes sought a
refund of sewer connection fees assessed by the village and paid by
the builders at the time of construction. It was uncontroverted
that the builders sold the homes that were subject to the sewer
connection fee. The court reasoned that the new homeowners and not
the builders would receive a refund if the new homeowners
established that the builders recouped the connection fees when
they sold the homes. Bishop, 99 Ill. App. 3d at 491. However, the
court denied the village s motion to substitute the new homeowners
in place of the builders. Bishop, 99 Ill. App. 3d at 493. Thus,
the builders still had standing. The case was remanded to the
trial court to determine whether the fee was invalid and who should
receive the refund. Bishop, 99 Ill. App. 3d at 492-93.
Thus, according to Bishop, the Builders in this case have a
right to seek a refund and have standing until it is proved that
they somehow transferred or assigned their right to another.
Further, as in Bishop, the fact that the Builders in this case sold
the homes at issue does not, in itself, prove that they lost their
right to seek a refund. Because the defendant has failed to
establish that the Builders recouped the connection fees from the
homeowners or otherwise assigned their right, Bishop does not
support the defendant's assertion that the Builders in this case
lack standing. See Bishop, 99 Ill. App. 3d at 490-91.
In addition, Vulcan Materials Co. does not support the
defendant's argument. In Vulcan, the trial court found that the
plaintiffs, owners of certain land, established a nonconforming use
for quarrying purposes and enjoined the county from interfering
with the quarry. Vulcan Materials Co., 61 Ill. App. 3d at 925.
While the appeal was pending, the property was taken from the
plaintiffs in an eminent domain proceeding. Vulcan Materials Co.,
61 Ill. App. 3d at 926. Because the plaintiffs no longer owned the
property at issue, the appellate court held that the case was moot
and the plaintiffs no longer had standing. Vulcan Materials Co., 61
Ill. App. 3d at 926-27.
Vulcan is inapplicable to the case at bar because the
plaintiff in that case sought a determination that it could use its
property for a certain purpose. Without ownership of the property,
the plaintiff had no interest in the controversy. The outcome of
the case would not have been a benefit or detriment to the
plaintiff. However, if the connection fee at issue in this case is
found to be invalid, the Builders will be entitled to a refund.
See Northern Illinois Home Builders Ass'n, 165 Ill. 2d at 35-36.
Thus, Vulcan does not apply to this case.
Next, the plaintiffs argue that the trial court erred by (1)
granting the defendant's motion for partial summary judgment,
finding that the defendant had the authority to enact the new
ordinance; and (2) granting the defendant's amended motion for
summary judgment and dismissing counts III and IV of the
plaintiffs second amended complaint. Regarding the validity of the
new ordinance, the plaintiffs alleged only that the defendant
lacked the legislative authority to charge connection fees.
Because the plaintiffs did not allege that the ordinance was not
reasonable, we will not address that issue.
Summary judgment is proper where the pleadings, exhibits,
affidavits, and depositions on file disclose no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. 735 ILCS 5/2--1005(c) (West 1996); Cramer v.
Insurance Exchange Agency, 174 Ill. 2d 513, 530 (1996). A motion
for summary judgment and its supporting documents must be construed
"strictly against the moving party and liberally in favor of the
opponent." O'Banner v. McDonald's Corp., 173 Ill. 2d 208, 211
(1996). We review a trial court's decision to grant or deny a
motion for summary judgment de novo. Olson v. Etheridge, 177 Ill. 2d 396, 404 (1997).
Defendant is a non-home-rule unit and therefore is governed by
"Dillon's Rule." Dillon's Rule provides that non-home-rule units
possess only those powers (1) expressly granted to them by the
Illinois Constitution or by statute; (2) incident to those
expressly granted; and (3) indispensable to the accomplishment of
the declared objectives of the non-home-rule unit. Commonwealth
Edison Co. v. City of Warrenville, 288 Ill. App. 3d 373, 380
(1997).
In interpreting statutory language, we must give effect to the
intent of the legislature. People v. Britz, 174 Ill. 2d 163, 196
(1996). The best indication of the legislature's intent is the
language of the statute in question. Hernon v. E.W. Corrigan
Construction Co., 149 Ill. 2d 190, 194 (1992). Thus, we will give
clear and unambiguous terms their plain and ordinary meaning.
Britz, 174 Ill. 2d at 194-95.
The legislature granted municipalities the power to own and
operate public utilities in accordance with section 11--117--1 of
the Illinois Municipal Code (Municipal Code). That section
provides:
"Subject to the provisions of this Division 117, any
municipality may (1) acquire, construct, own and operate
within the corporate limits of the municipality any public
utility the product or service of which, or a major portion
thereof, is or is to be supplied to the municipality or its
inhabitants and may contract for, purchase and sell the
product or service of any such utility; *** (4) fix the rates
and charges for the product sold and the services rendered by
any such public utility; and (5) make all needful rules and
regulations in relation thereto." 65 ILCS 5/11--117--1 (West
1992).
The defendant's new ordinance levies a fee for the connection
of new residential homes to the defendant's existing electrical
utility system. The fee is a "charge" for the connection service
provided by the defendant. Section 11--117--1 permits
municipalities to charge for the services it renders for customers
of an electric utility. 65 ILCS 5/11--117--1 (West 1992). Thus,
the defendant had the authority to enact the new ordinance.
The plaintiffs argue that sections 11--119--1 and 11--119--3
prohibit municipalities from charging connection fees to their
electric utility systems. Sections 11--119--1 and 11--119-3
provide in pertinent part:
"Every city or village owning and operating its electric,
light plant and system *** may pay for improving, enlarging or
extending the plant and system by the issuance and sale of
revenue bonds." 65 ILCS 5/11--119--1 (West 1992).
"Whenever bonds are issued under this Division 119,
sufficient revenue received thereafter from the operation of
the electric light plant and system, *** to pay the cost of
maintenance and operation of the plant and system, and the
principal of and interest on all obligations payable from the
revenues of such plant and system, including the bonds issued
hereunder, without limiting the generality of the foregoing,
shall be deposited in a separate fund ***. This fund shall be
used only in paying (1) the cost of maintenance and operation
of the plant and system, (2) principal of and interest upon
obligations, in whatever form, of the municipality theretofore
issued that are payable by their terms from this revenue, and
(3) bonds issued under this Division 119." 65 ILCS 5/11-119--
3 (West 1992).
The plaintiffs argue that the above sections govern the issue
before us because they are more specific than sections 11--117--1
and 11--117--3. The plaintiffs claim that section 11-119--3
provides that the only way the defendant may extend or enlarge its
electric utility system is to issue bonds. The plaintiffs argue
that, since the new ordinance mandates the payment of extension or
enlargement of its service by means other than issuing bonds, the
new ordinance is invalid. We disagree with the plaintiffs.
We recognize that, where there are two statutory provisions,
one that applies to cases generally and another that is more
specific and applies to the particular subject at issue, the more
specific provision prevails. McDunn v. Williams, 156 Ill. 2d 288,
309 (1993). We also acknowledge that a more recent statute takes
precedence over an earlier statute. Williams v. Illinois State
Scholarship Comm'n, 139 Ill. 2d 24, 57-58 (1990). However, in this
case, the more specific provision (65 ILCS 5/11--119--3 (West
1992)) does not prohibit the defendant's enactment of the new
ordinance.
Section 11--119--1 permits municipalities to "pay for
improving, enlarging, or extending" their electric utility plant
and system by issuing and selling bonds. 65 ILCS 5/11--119--1
(West 1992). Nothing in the provision prohibits other methods or
payment. The provision simply permits the issuance of bonds and
then mandates limitations regarding this method of raising money.
65 ILCS 5/11--119--3 (West 1992).
Next, the plaintiffs assert that under section 11--119--3
connection costs must be paid through rates charged for electric
current only. The plaintiffs argue that, since the new ordinance
provides for the payment of connection costs by another method, it
is invalid. Section 11--119--3 provides in pertinent part:
"Rates charged for electric current *** shall be
sufficient to pay the cost of maintenance and operation and to
pay the principal of and interest upon all of the specified
bonds and obligations." (Emphasis added.) 65 ILCS 5/11-119--
3 (West 1992).
The plaintiffs ignore the plain and ordinary meaning of this
provision. "Maintenance" means "the labor of keeping something (as
buildings or equipment) in a state of repair or efficiency."
Webster's Third New International Dictionary 1362 (1993).
"Operation" means "the operating of or putting and maintaining in
action of something (as a machine or an industry)." Webster's
Third New International Dictionary 1581 (1993). In other words,
maintenance and operation as used in section 11-119--3 mean keeping
the electric utility system running and in a state of repair.
However, the connection fee mandated by the new ordinance does not
pay for the costs of maintenance or operation; rather, it pays for
the cost of connecting new customers to the defendant's electric
utility system. Thus, nothing in section 11-119--3 invalidates the
defendant's new ordinance.
Next, the plaintiffs argue that if we hold that sections 11--
117--1 and 11--117--3 (65 ILCS 5/11--117--1, 11--117--3 (West
1992)) authorize connection fees for electric utility service, then
section 11--150--1 of the Municipal Code (65 ILCS 5/11--150--1
(West 1992)) is rendered meaningless and superfluous. We disagree.
Section 11--150--1 of the Municipal Code grants municipalities
the authority to charge for the connection to their water and sewer
systems. (65 ILCS 5/11--150--1 (West 1992)). The section provides
in pertinent part:
"The corporate authorities of any municipality operating
a waterworks, sewerage or combined waterworks and sewerage
system have the power by ordinance to collect a fair and
reasonable charge for connection to any such system in
addition to those charges covered by normal taxes, for the
construction, expansion and extension of the works of the
system, the charge to be assessed against new or additional
users of the system and to be known as a connection charge,
except that no connection or water usage charge shall exceed
the actual cost required for the installation or usage of an
automatic sprinkler system." 65 ILCS 5/11--150--1 (West
1992).
The plaintiffs fail to recognize that this provision, enacted
in 1967 (1967 Ill. Laws 2805 (1)), codified the portion of Norwick
v. Village of Winfield, 81 Ill. App. 2d 197 (1967), that held that
a connection fee can be collected for the use of municipal water
and sewerage systems. Estate of Besinger v. Village of
Carpentersville, 258 Ill. App. 3d 218, 229 (1994). Thus, by
enacting section 11--150--1, the legislature expressly authorized
what had already been impliedly authorized; it did not preclude the
extension of Norwick to other municipal systems.
The plaintiffs argue that Norwick is not applicable to the
ordinance at issue in this case, because in Norwick the legislature
had granted municipalities " 'owning, acquiring, or constructing
and providing for the operation of a combined waterworks and
sewerage system' " the power to " 'improve and extend' that
system." (Emphasis added.) Norwick, 81 Ill. App. 2d at 199-200,
quoting Ill. Rev. Stat. 1965, ch. 24, par. 11--139--2. According
to the plaintiffs, because the legislature has not expressly
authorized municipalities owning electric utility systems the power
to improve and extend their systems, Norwick does not apply to the
case at bar.
However, the plaintiffs ignore that this court previously
interpreted language similar to that which is contained in sections
11--117--1 and 11--117--3 as authorizing a connection fee for
municipal utilities. In Rosborough v. City of Moline, 30 Ill. App.
2d 167 (1961), the City of Moline enacted an ordinance that
provided:
" 'The following rules and regulations shall be
considered a part of the contract with every consumer of City
Water and said consumer shall be governed by and subject to
the following rules and regulations.' " Rosborough, 30 Ill.
App. 2d at 172--73, quoting from section 5 of "An ordinance
creating a water department of the City of Moline, Illinois,
and providing for the supervision and management of any and
all property and matters pertaining thereto" (passed December
16, 1935).
The ordinance also provided that the cost of installing and
repairing connecting pipes to a property will be paid for by the
property owners. Rosborough, 30 Ill. App. 2d at 171. This court
stated that, since the property owner chose to use and receive the
municipality s water, he impliedly agreed to the reasonable
regulations regarding such use. Rosborough, 30 Ill. App. 2d at
179. This court held that the City of Moline's ordinance was
reasonable and authorized by the legislature by the following
statutory language:
" 'The corporate authorities have the power to make all
needful rules and regulations concerning the use of water
supplied by the waterworks of the city or village, and to do
all acts and make such rules and regulations for the
construction, completion, management, or control of the
waterworks, and for the fixing and collecting of such water
rates or rents as the corporate authorities may deem necessary
or expedient.' " (Emphasis added.) Rosborough, 30 Ill. App.
2d at 178, quoting Ill. Rev. Stat. 1959, ch. 24, par. 74--3.
Quoting the language emphasized above, this court stated that the
City of Moline validly exercised its power by enacting the
ordinance at issue. Rosborough, 30 Ill. App. 2d at 184.
The language of the authorizing statute in Rosborough is
similar to the language contained in the statute at issue in the
case at bar. Section 11--117--1 of the Municipal Code authorized
defendant to "acquire, construct, own and operate *** any public
utility" (65 ILCS 5/11--117--1(1) (West 1992)), "fix the rates and
charges for the product sold and the services rendered" (65 ILCS
5/11--117--1(4) (West 1992)), and "make all needful rules and
regulations in relation thereto." (Emphasis added.) (65 ILCS 5/11-
-117--1(5) (West 1992)). Thus, following the reasoning of
Rosborough, section 11--117--1 grants the defendant the authority
to charge property owners a fee for connecting their homes to the
defendant s electrical utility system.
The plaintiffs also assert that, because the new ordinance
states that its authority derives from section 11--119--3, it may
not now deny that it relied on this section. The plaintiffs ignore
the fact that the ordinance also states that its authority derives
from section 11--117--1 and the common law. Thus, this argument
lacks merit.
Accordingly, we reverse the trial court's dismissal of counts
I and II of the plaintiffs second amended complaint based upon the
Builders' lack of standing. Further, we remand Counts I and II to
the trial court for disposition on the merits. We affirm the trial
court's dismissal of counts III and IV of all the plaintiffs
second amended complaint.
The judgment of the circuit court of Kane County is reversed
in part and affirmed in part, and the cause is remanded for further
proceedings with respect to counts I and II.
Affirmed in part and reversed in part; cause remanded.
GEIGER, P.J., and INGLIS, J., concur.
No. 2--97--0847
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
NORTHERN ILLINOIS HOME BUILDERS ) Appeal from the Circuit
ASS'N; GALLANT HOMES, INC.; THE ) Court of Kane County.
KRUGHOFF COMPANY; SHO DEEN, INC.; )
JOE KEIM BUILDERS, INC.; KEIM )
CORPORATION; and HAVLICEK BUILDERS, )
INC., )
)
Plaintiffs-Appellants, ) No. 92--MR--0013
)
v. )
)
THE CITY OF ST. CHARLES, )
)
Defendant-Appellee ) Honorable
) R. Peter Grometer and
(John R. Hall & Sons, Inc., ) Timothy Q. Sheldon,
Plaintiff). ) Judges, Presiding.
_________________________________________________________________
JUSTICE McLAREN delivered the opinion of the court:
Plaintiffs Gallant Homes, Inc.; The Krughoff Company; Sho
Deen, Inc.; Joe Keim Builders, Inc.; Keim Corporation; and Havlicek
Builders, Inc., (collectively the Builders) and plaintiff Northern
Illinois Home Builders Association appeal the trial court s
dismissal of the plaintiffs' second amended complaint seeking a
declaratory judgment that the defendant's ordinances mandating an
electric service connection fee is unconstitutional and invalid.
We reverse in part, affirm in part, and remand for further
proceedings.
Since 1892, the defendant, the City of St. Charles, a non-
home-rule municipality, has operated its own electric utility
system. The defendant, the sole provider of electrical current to
residences within St. Charles, buys electrical energy from
Commonwealth Edison at wholesale and distributes electricity to
customers through facilities owned by the defendant. The
defendant s electric utility system is financed by retained
earnings, not by bonds. Prior to 1972 the cost of connecting new
customers to the system was paid for by the income from the sale of
electric energy.
In 1990 the defendant adopted ordinance 1990-M-36 (the old
ordinance) (St. Charles Municipal Code 13.08.150 (passed April 16,
1990)), which provided that the cost of connecting new customers to
the system would be paid for by the new customers. Under this old
ordinance, new customers paid one charge, which was based on
standard increments of service capacity, i.e., $1,200 for 100 amps,
$2,400 for 200 amps, $4,800 for 400 amps.
In counts I and II, the plaintiffs alleged that the Builders
built single-family residential homes within the defendant s
corporate borders. The plaintiffs alleged that the Builders paid
the connection fees assessed by the defendant when they obtained
building permits. The complaint also alleged that the Builders had
an ownership interest in the property when they paid the connection
fees. Further, all the Builders, except The Krughoff Company and
Havlicek Builders, Inc., alleged that they continued to have a
property interest in the homes in which they paid the connection
fees. The plaintiffs sought a declaration from the court that the
old ordinance was invalid and an order for the return of the fees
with interest.
On January 7, 1992, the plaintiffs and John R. Hall & Sons,
Inc., filed a complaint for declaratory judgment against the
defendant. The complaint challenged the validity and
constitutionality of the defendant s ordinance. The trial court
denied the defendant s motion to dismiss, but then sua sponte
requested that the plaintiffs and John R. Hall & Sons, Inc., amend
their complaint. The plaintiffs and John R. Hall & Sons, Inc.,
filed an amended complaint for declaratory judgment on December 16,
1992. On December 21, 1992, the defendant adopted the new
ordinance.
On December 21, 1992, the defendant adopted ordinance 1992-M-
71 (the new ordinance) (St. Charles Municipal Code 13.08.135
(passed December 21, 1992)), which amended the old ordinance and
charged new customers two separate charges for connection, namely,
a service origination charge "of $1,500 plus four and one-half
percent (4«%) per annum from January 1, 1993 until paid" and a
service enrollment charge. The service origination charge is the
cost of the hookup from the individual lot to the electrical
facilities within the subdivision. The service enrollment charge
is the cost of the hookup from the subdivision to a transformer,
plus the cost of processing a service application. The defendant
passed the new ordinance in reliance on a study that revealed that
the connection charge under the old ordinance did not cover the
actual costs of connecting new customers to the system. As a
result, the existing ratepayers bore some of the connection costs.
On December 20, 1993, the plaintiffs and John R. Hall & Sons,
Inc., filed their second amended complaint for declaratory
judgment, challenging the validity of both the new and old
ordinances. The plaintiffs and John R. Hall & Sons, Inc., repeated
counts I and II contained in their amended complaint and alleged in
counts III and IV that, from December 21, 1992, through July 16,
1997, the Builders continued to build single-family residential
homes within the defendant s corporate borders. The plaintiffs and
John R. Hall & Sons, Inc., further alleged that the Builders paid
the connection fees in accordance with the new ordinance and that
if they did not pay the connection fees under both the old and new
ordinances they would not be able to obtain a building permit,
resulting in a disastrous effect on their business. Thus, they
paid the fees under protest, compulsion, and duress.
The defendant filed an answer to the second amended complaint
and on January 26, 1995, filed a section 2--619(a)(9) motion (735
ILCS 5/2--619(a)(9) (West 1994)) to dismiss counts I and II of the
complaint, alleging that the plaintiffs lacked standing to
challenge the validity and constitutionality of the old ordinance
and that the repeal of the old ordinance rendered the counts moot.
The motion to dismiss also sought the dismissal as plaintiffs of
Northern Illinois Home Builders Association and John R. Hall &
Sons, Inc., alleging that they had no standing because they had not
paid a connection fee.
The plaintiffs and John R. Hall & Sons, Inc., filed a motion
to strike the defendant's motion to dismiss, arguing that the
defendant s motion was untimely. On May 9, 1995, after a hearing,
the trial court denied the motion to strike the defendant s motion
to dismiss and granted the defendant s motion to dismiss counts I
and II of the complaint based on the plaintiffs' and John R. Hall's
lack of standing. The trial court also dismissed Northern Illinois
Home Builders Association from all counts for lack of standing and
granted John R. Hall & Sons motion to voluntarily dismiss.
On June 8, 1995, the defendant filed a motion for partial
summary judgment pursuant to section 2--1005 of the Code of Civil
Procedure (735 ILCS 5/2--1005 (West 1994)). The motion, directed
at the remaining counts III and IV, addressed the sole issue of
whether the defendant had the statutory authority to enact and
impose electrical connection fees under the new ordinance. The
plaintiffs filed a cross-motion for partial summary judgment.
After a hearing on February 29, 1996, the trial court granted
the defendant's motion for partial summary judgment and denied the
plaintiffs motion for partial summary judgment. The findings were
set forth in a letter opinion. On March 18, 1996, the trial court
entered an order reflecting its findings.
On July 16, 1996, the defendant amended its motion for summary
judgment directed at the remaining issue of whether the connection
fee was reasonable. The trial court granted the motion and
dismissed all counts of the plaintiffs second amended complaint
with prejudice. The plaintiffs timely filed this appeal.
Initially, we address the plaintiffs' motion to strike
portions of the defendant's brief. The plaintiffs urge us to
strike the portion of the defendant's brief that espouses the
theory that a contract existed in which the Builders impliedly
agreed to pay the connection fee. The plaintiffs argue that the
defendant failed to raise the contract issue in the trial court
and failed to file complete certified copies of the old and new
ordinances.
It is well settled that an appellee may urge any point in
support of the judgment on appeal that is supported by the record
without regard to whether the point was raised before the trial
court. Mayfield v. ACME Barrel Co., 258 Ill. App. 3d 32, 37
(1994). In defendant's motion for partial summary judgment and
motion for summary judgment, the defendant alleged that it had the
authority to pass the new ordinance. The defendant then attached
the procedures used by the defendant in providing electric service.
The procedure includes the acceptance of a contract by customers
seeking connection to the electric utility service. In addition,
the defendant attached two such contracts between the defendant and
Joe Keim Builders, Inc., and Sho Deen, Inc. Because the record
contains support for the defendant's argument regarding a contract,
we deny the plaintiffs motion to strike this portion of the
defendant's brief.
Next, the plaintiffs urge us to strike the portion of the St.
Charles Municipal Code that provides that the rules and regulations
contained in the ordinance will be part of contracts with customers
who purchase electricity from the defendant. An appellate court
may take judicial notice of an ordinance raised on appeal by an
appellee even though the appellee failed to raise the ordinance in
the trial court. Szczurek v. City of Park Ridge, 97 Ill. App. 3d
649, 658 (1981); 735 ILCS 5/8--1001, 8--1002 (West 1996). Thus, we
deny the plaintiffs' motion to strike this portion of the
defendant's brief.
Lastly, the plaintiffs urge us to strike the portion of the
defendant's brief that discusses a trial court decision, West v.
Batavia, No. 84--MR--213 (Cir. Ct. Kane Co.). In deciding this case
below, the trial court cited No. 84--MR--213 and adopted its
reasoning. Because the case is contained in the record and the
defendant does not claim that it is binding upon this court, we
deny the plaintiffs' motion to strike the portion of the
defendant's brief that discusses this case. We now address the
merits of the plaintiffs' appeal.
The standard guiding our review of the trial court's decision
to grant the defendant s section 2--619 motions (735 ILCS 5/2--619
(West 1994)) is clear. Section 2--619(a)(9) of the Code of Civil
Procedure provides for dismissal if "the claim asserted against
defendant is barred by other affirmative matter avoiding the legal
effect of or defeating the claim." 735 ILCS 5/2--619 (West 1994).
Thus, the moving party admits the legal sufficiency of the
complaint but asserts an affirmative defense or other matter that
avoids or defeats the claim. Brock v. Anderson Road Ass'n, 287
Ill. App. 3d 16, 21 (1997).
For purposes of section 2--619 motions, all well-pleaded facts
in the complaint are deemed admitted (Sisk v. Williamson County,
167 Ill. 2d 343, 346 (1995)), and only the legal sufficiency of the
complaint is at issue (Brock, 287 Ill. App. 3d at 21). However,
exhibits attached to the complaint become part of the complaint and
will also be considered. Brock, 287 Ill. App. 3d at 21. Thus,
"the trial court may consider pleadings, depositions, and
affidavits." Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995).
Further, an exhibit attached to a complaint controls, and a motion
to dismiss does not admit allegations of the complaint if such
allegations are in conflict with the facts disclosed in the
exhibit. Brock, 287 Ill. App. 3d at 21. We review the granting of
a section 2--619 motion to dismiss de novo. Kedzie & 103rd
Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993);
Brock, 287 Ill. App. 3d at 21. "The question on appeal is 'whether
the existence of a genuine issue of material fact should have
precluded the dismissal or, absent such an issue of fact, whether
dismissal is proper as a matter of law.' " Zedella, 165 Ill. 2d at
185-86, quoting Kedzie, 156 Ill. 2d at 116-17.
First, the plaintiffs argue that the trial court erred by
dismissing counts I and II for lack of standing. The plaintiffs
argue that, since the Builders paid taxes under the old ordinance
and now assert that the ordinance was invalid, they have presented
a justiciable issue. The defendant argues that the Builders lack
standing because they admitted in an interrogatory that they sold
the homes for which they paid the connection fee under the old
ordinance and offered no evidence that they retained the right to
a refund. We agree with the plaintiffs.
The doctrine of standing seeks to insure that courts decide
actual controversies and not abstract questions. People v.
$1,124,905 U.S. Currency and One 1988 Chevrolet Astro Van, 177 Ill. 2d 314, 328 (1997). It is well established that a court may
not address the constitutionality of a statute unless the party
challenging the statute has standing to challenge it. People v.
Capitol News, Inc., 137 Ill. 2d 162, 169 (1990). A plaintiff
seeking a declaratory judgment has standing to challenge the
constitutionality of a statute if he presents an actual controversy
in which he is an interested party with a personal claim, status,
or right. Kluk v. Lang, 125 Ill. 2d 306, 314 (1988). The
requirement that a controversy be "actual" is meant to insure that
the underlying facts and issues of the case are not moot or
premature, but it is not meant to preclude a valid controversy from
being litigated. Messenger v. Edgar, 157 Ill. 2d 162, 170-71
(1993). In addition, the plaintiff "must have sustained, or be in
immediate danger of sustaining, a direct injury as a result of
enforcement of the challenged statute." Messenger, 157 Ill. 2d at
171. Further, the grant of the declaratory judgment must be
substantially likely to prevent or redress such injury. Messenger,
157 Ill. 2d at 170.
The plaintiffs alleged in their second amended complaint that
the Builders paid the connection fees under the old ordinance.
Although we have not found a case that expressly states that a
party who paid an allegedly invalid charge or tax has standing to
challenge the charge or tax, this can be inferred by our supreme
court's decision in Northern Illinois Home Builders Ass'n, Inc. v.
County of Du Page, 165 Ill. 2d 25 (1995).
In Northern Illinois Home Builders Ass'n, our supreme court
addressed the constitutionality of fees paid by one of the
plaintiffs and exacted by the defendants pursuant to the challenged
ordinances. The court addressed the merits of the case without
addressing the issue of standing, held that the fee at issue was
invalid, and ordered that the monies collected be returned to a
home builder who paid the fee. Northern Illinois Home Builders
Ass'n, 165 Ill. 2d at 50. Because a court may not address the
constitutionality of a statute unless the party challenging the
statute has standing, we infer from the court's decision that the
plaintiffs in Northern Illinois Home Builders Ass'n had standing.
See Capitol News, 137 Ill. 2d at 169.
Further, according to Northern Illinois Home Builders Ass'n,
if the old ordinance is held invalid, the Builders in this case
will be entitled to a refund. See Northern Illinois Home Builders
Ass'n, 165 Ill. 2d at 35-36. Thus, the Builders have sustained a
direct injury as a result of the enforcement of the challenged
ordinance, and the grant of the declaratory judgment will redress
such injury. See Messenger, 157 Ill. 2d at 170. Accordingly, the
Builders have standing to challenge the constitutionality and
validity of the old ordinance, and the trial court's decision to
grant the defendant's motion to dismiss counts I and II for lack of
standing was improper.
Citing Bishop v. Village of Brookfield, 99 Ill. App. 3d 483
(1981) and Vulcan Materials Co. v. County of Will, 61 Ill. App. 3d
925 (1978), the defendant argues that the Builders do not have
standing because they sold the homes for which they paid the
connection fees under the old ordinance. According to the
defendants, since the Builders failed to reserve their rights to a
refund, the right passed to the subsequent purchasers of the homes.
The cases cited by the defendant were also relied on by the trial
court in reaching its decision. However, these cases are
distinguishable from the case at bar.
In Bishop, the appellate court permitted homeowners to
intervene in a case in which the builders of the homes sought a
refund of sewer connection fees assessed by the village and paid by
the builders at the time of construction. It was uncontroverted
that the builders sold the homes that were subject to the sewer
connection fee. The court reasoned that the new homeowners and not
the builders would receive a refund if the new homeowners
established that the builders recouped the connection fees when
they sold the homes. Bishop, 99 Ill. App. 3d at 491. However, the
court denied the village s motion to substitute the new homeowners
in place of the builders. Bishop, 99 Ill. App. 3d at 493. Thus,
the builders still had standing. The case was remanded to the
trial court to determine whether the fee was invalid and who should
receive the refund. Bishop, 99 Ill. App. 3d at 492-93.
Thus, according to Bishop, the Builders in this case have a
right to seek a refund and have standing until it is proved that
they somehow transferred or assigned their right to another.
Further, as in Bishop, the fact that the Builders in this case sold
the homes at issue does not, in itself, prove that they lost their
right to seek a refund. Because the defendant has failed to
establish that the Builders recouped the connection fees from the
homeowners or otherwise assigned their right, Bishop does not
support the defendant's assertion that the Builders in this case
lack standing. See Bishop, 99 Ill. App. 3d at 490-91.
In addition, Vulcan Materials Co. does not support the
defendant's argument. In Vulcan, the trial court found that the
plaintiffs, owners of certain land, established a nonconforming use
for quarrying purposes and enjoined the county from interfering
with the quarry. Vulcan Materials Co., 61 Ill. App. 3d at 925.
While the appeal was pending, the property was taken from the
plaintiffs in an eminent domain proceeding. Vulcan Materials Co.,
61 Ill. App. 3d at 926. Because the plaintiffs no longer owned the
property at issue, the appellate court held that the case was moot
and the plaintiffs no longer had standing. Vulcan Materials Co., 61
Ill. App. 3d at 926-27.
Vulcan is inapplicable to the case at bar because the
plaintiff in that case sought a determination that it could use its
property for a certain purpose. Without ownership of the property,
the plaintiff had no interest in the controversy. The outcome of
the case would not have been a benefit or detriment to the
plaintiff. However, if the connection fee at issue in this case is
found to be invalid, the Builders will be entitled to a refund.
See Northern Illinois Home Builders Ass'n, 165 Ill. 2d at 35-36.
Thus, Vulcan does not apply to this case.
Next, the plaintiffs argue that the trial court erred by (1)
granting the defendant's motion for partial summary judgment,
finding that the defendant had the authority to enact the new
ordinance; and (2) granting the defendant's amended motion for
summary judgment and dismissing counts III and IV of the
plaintiffs second amended complaint. Regarding the validity of the
new ordinance, the plaintiffs alleged only that the defendant
lacked the legislative authority to charge connection fees.
Because the plaintiffs did not allege that the ordinance was not
reasonable, we will not address that issue.
Summary judgment is proper where the pleadings, exhibits,
affidavits, and depositions on file disclose no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. 735 ILCS 5/2--1005(c) (West 1996); Cramer v.
Insurance Exchange Agency, 174 Ill. 2d 513, 530 (1996). A motion
for summary judgment and its supporting documents must be construed
"strictly against the moving party and liberally in favor of the
opponent." O'Banner v. McDonald's Corp., 173 Ill. 2d 208, 211
(1996). We review a trial court's decision to grant or deny a
motion for summary judgment de novo. Olson v. Etheridge, 177 Ill. 2d 396, 404 (1997).
Defendant is a non-home-rule unit and therefore is governed by
"Dillon's Rule." Dillon's Rule provides that non-home-rule units
possess only those powers (1) expressly granted to them by the
Illinois Constitution or by statute; (2) incident to those
expressly granted; and (3) indispensable to the accomplishment of
the declared objectives of the non-home-rule unit. Commonwealth
Edison Co. v. City of Warrenville, 288 Ill. App. 3d 373, 380
(1997).
In interpreting statutory language, we must give effect to the
intent of the legislature. People v. Britz, 174 Ill. 2d 163, 196
(1996). The best indication of the legislature's intent is the
language of the statute in question. Hernon v. E.W. Corrigan
Construction Co., 149 Ill. 2d 190, 194 (1992). Thus, we will give
clear and unambiguous terms their plain and ordinary meaning.
Britz, 174 Ill. 2d at 194-95.
The legislature granted municipalities the power to own and
operate public utilities in accordance with section 11--117--1 of
the Illinois Municipal Code (Municipal Code). That section
provides:
"Subject to the provisions of this Division 117, any
municipality may (1) acquire, construct, own and operate
within the corporate limits of the municipality any public
utility the product or service of which, or a major portion
thereof, is or is to be supplied to the municipality or its
inhabitants and may contract for, purchase and sell the
product or service of any such utility; *** (4) fix the rates
and charges for the product sold and the services rendered by
any such public utility; and (5) make all needful rules and
regulations in relation thereto." 65 ILCS 5/11--117--1 (West
1992).
The defendant's new ordinance levies a fee for the connection
of new residential homes to the defendant's existing electrical
utility system. The fee is a "charge" for the connection service
provided by the defendant. Section 11--117--1 permits
municipalities to charge for the services it renders for customers
of an electric utility. 65 ILCS 5/11--117--1 (West 1992). Thus,
the defendant had the authority to enact the new ordinance.
The plaintiffs argue that sections 11--119--1 and 11--119--3
prohibit municipalities from charging connection fees to their
electric utility systems. Sections 11--119--1 and 11--119-3
provide in pertinent part:
"Every city or village owning and operating its electric,
light plant and system *** may pay for improving, enlarging or
extending the plant and system by the issuance and sale of
revenue bonds." 65 ILCS 5/11--119--1 (West 1992).
"Whenever bonds are issued under this Division 119,
sufficient revenue received thereafter from the operation of
the electric light plant and system, *** to pay the cost of
maintenance and operation of the plant and system, and the
principal of and interest on all obligations payable from the
revenues of such plant and system, including the bonds issued
hereunder, without limiting the generality of the foregoing,
shall be deposited in a separate fund ***. This fund shall be
used only in paying (1) the cost of maintenance and operation
of the plant and system, (2) principal of and interest upon
obligations, in whatever form, of the municipality theretofore
issued that are payable by their terms from this revenue, and
(3) bonds issued under this Division 119." 65 ILCS 5/11-119--
3 (West 1992).
The plaintiffs argue that the above sections govern the issue
before us because they are more specific than sections 11--117--1
and 11--117--3. The plaintiffs claim that section 11-119--3
provides that the only way the defendant may extend or enlarge its
electric utility system is to issue bonds. The plaintiffs argue
that, since the new ordinance mandates the payment of extension or
enlargement of its service by means other than issuing bonds, the
new ordinance is invalid. We disagree with the plaintiffs.
We recognize that, where there are two statutory provisions,
one that applies to cases generally and another that is more
specific and applies to the particular subject at issue, the more
specific provision prevails. McDunn v. Williams, 156 Ill. 2d 288,
309 (1993). We also acknowledge that a more recent statute takes
precedence over an earlier statute. Williams v. Illinois State
Scholarship Comm'n, 139 Ill. 2d 24, 57-58 (1990). However, in this
case, the more specific provision (65 ILCS 5/11--119--3 (West
1992)) does not prohibit the defendant's enactment of the new
ordinance.
Section 11--119--1 permits municipalities to "pay for
improving, enlarging, or extending" their electric utility plant
and system by issuing and selling bonds. 65 ILCS 5/11--119--1
(West 1992). Nothing in the provision prohibits other methods or
payment. The provision simply permits the issuance of bonds and
then mandates limitations regarding this method of raising money.
65 ILCS 5/11--119--3 (West 1992).
Next, the plaintiffs assert that under section 11--119--3
connection costs must be paid through rates charged for electric
current only. The plaintiffs argue that, since the new ordinance
provides for the payment of connection costs by another method, it
is invalid. Section 11--119--3 provides in pertinent part:
"Rates charged for electric current *** shall be
sufficient to pay the cost of maintenance and operation and to
pay the principal of and interest upon all of the specified
bonds and obligations." (Emphasis added.) 65 ILCS 5/11-119--
3 (West 1992).
The plaintiffs ignore the plain and ordinary meaning of this
provision. "Maintenance" means "the labor of keeping something (as
buildings or equipment) in a state of repair or efficiency."
Webster's Third New International Dictionary 1362 (1993).
"Operation" means "the operating of or putting and maintaining in
action of something (as a machine or an industry)." Webster's
Third New International Dictionary 1581 (1993). In other words,
maintenance and operation as used in section 11-119--3 mean keeping
the electric utility system running and in a state of repair.
However, the connection fee mandated by the new ordinance does not
pay for the costs of maintenance or operation; rather, it pays for
the cost of connecting new customers to the defendant's electric
utility system. Thus, nothing in section 11-119--3 invalidates the
defendant's new ordinance.
Next, the plaintiffs argue that if we hold that sections 11--
117--1 and 11--117--3 (65 ILCS 5/11--117--1, 11--117--3 (West
1992)) authorize connection fees for electric utility service, then
section 11--150--1 of the Municipal Code (65 ILCS 5/11--150--1
(West 1992)) is rendered meaningless and superfluous. We disagree.
Section 11--150--1 of the Municipal Code grants municipalities
the authority to charge for the connection to their water and sewer
systems. (65 ILCS 5/11--150--1 (West 1992)). The section provides
in pertinent part:
"The corporate authorities of any municipality operating
a waterworks, sewerage or combined waterworks and sewerage
system have the power by ordinance to collect a fair and
reasonable charge for connection to any such system in
addition to those charges covered by normal taxes, for the
construction, expansion and extension of the works of the
system, the charge to be assessed against new or additional
users of the system and to be known as a connection charge,
except that no connection or water usage charge shall exceed
the actual cost required for the installation or usage of an
automatic sprinkler system." 65 ILCS 5/11--150--1 (West
1992).
The plaintiffs fail to recognize that this provision, enacted
in 1967 (1967 Ill. Laws 2805 (1)), codified the portion of Norwick
v. Village of Winfield, 81 Ill. App. 2d 197 (1967), that held that
a connection fee can be collected for the use of municipal water
and sewerage systems. Estate of Besinger v. Village of
Carpentersville, 258 Ill. App. 3d 218, 229 (1994). Thus, by
enacting section 11--150--1, the legislature expressly authorized
what had already been impliedly authorized; it did not preclude the
extension of Norwick to other municipal systems.
The plaintiffs argue that Norwick is not applicable to the
ordinance at issue in this case, because in Norwick the legislature
had granted municipalities " 'owning, acquiring, or constructing
and providing for the operation of a combined waterworks and
sewerage system' " the power to " 'improve and extend' that
system." (Emphasis added.) Norwick, 81 Ill. App. 2d at 199-200,
quoting Ill. Rev. Stat. 1965, ch. 24, par. 11--139--2. According
to the plaintiffs, because the legislature has not expressly
authorized municipalities owning electric utility systems the power
to improve and extend their systems, Norwick does not apply to the
case at bar.
However, the plaintiffs ignore that this court previously
interpreted language similar to that which is contained in sections
11--117--1 and 11--117--3 as authorizing a connection fee for
municipal utilities. In Rosborough v. City of Moline, 30 Ill. App.
2d 167 (1961), the City of Moline enacted an ordinance that
provided:
" 'The following rules and regulations shall be
considered a part of the contract with every consumer of City
Water and said consumer shall be governed by and subject to
the following rules and regulations.' " Rosborough, 30 Ill.
App. 2d at 172--73, quoting from section 5 of "An ordinance
creating a water department of the City of Moline, Illinois,
and providing for the supervision and management of any and
all property and matters pertaining thereto" (passed December
16, 1935).
The ordinance also provided that the cost of installing and
repairing connecting pipes to a property will be paid for by the
property owners. Rosborough, 30 Ill. App. 2d at 171. This court
stated that, since the property owner chose to use and receive the
municipality s water, he impliedly agreed to the reasonable
regulations regarding such use. Rosborough, 30 Ill. App. 2d at
179. This court held that the City of Moline's ordinance was
reasonable and authorized by the legislature by the following
statutory language:
" 'The corporate authorities have the power to make all
needful rules and regulations concerning the use of water
supplied by the waterworks of the city or village, and to do
all acts and make such rules and regulations for the
construction, completion, management, or control of the
waterworks, and for the fixing and collecting of such water
rates or rents as the corporate authorities may deem necessary
or expedient.' " (Emphasis added.) Rosborough, 30 Ill. App.
2d at 178, quoting Ill. Rev. Stat. 1959, ch. 24, par. 74--3.
Quoting the language emphasized above, this court stated that the
City of Moline validly exercised its power by enacting the
ordinance at issue. Rosborough, 30 Ill. App. 2d at 184.
The language of the authorizing statute in Rosborough is
similar to the language contained in the statute at issue in the
case at bar. Section 11--117--1 of the Municipal Code authorized
defendant to "acquire, construct, own and operate *** any public
utility" (65 ILCS 5/11--117--1(1) (West 1992)), "fix the rates and
charges for the product sold and the services rendered" (65 ILCS
5/11--117--1(4) (West 1992)), and "make all needful rules and
regulations in relation thereto." (Emphasis added.) (65 ILCS 5/11-
-117--1(5) (West 1992)). Thus, following the reasoning of
Rosborough, section 11--117--1 grants the defendant the authority
to charge property owners a fee for connecting their homes to the
defendant s electrical utility system.
The plaintiffs also assert that, because the new ordinance
states that its authority derives from section 11--119--3, it may
not now deny that it relied on this section. The plaintiffs ignore
the fact that the ordinance also states that its authority derives
from section 11--117--1 and the common law. Thus, this argument
lacks merit.
Accordingly, we reverse the trial court's dismissal of counts
I and II of the plaintiffs second amended complaint based upon the
Builders' lack of standing. Further, we remand Counts I and II to
the trial court for disposition on the merits. We affirm the trial
court's dismissal of counts III and IV of all the plaintiffs
second amended complaint.
The judgment of the circuit court of Kane County is reversed
in part and affirmed in part, and the cause is remanded for further
proceedings with respect to counts I and II.
Affirmed in part and reversed in part; cause remanded.
GEIGER, P.J., and INGLIS, J., concur.
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