dissenting:
To state the issue in its full context, Western seeks the right to serve future purchasers of parcels of land who may become its customers within the annexed area. The proceedings were initiated before the Commission when Western served a notice of intent to extend its lines within the subdivision which incorporated a plat of 66 acres and 109 lots.
The Commission found that Western contends that by reason of the 1946 contract with Richard Humphry it is entitled to extend its lines and furnish its electricity to “any future customers who may ultimately acquire a part of the original Humphry premises.” The same contention is urged in Western’s brief in this court.
The Commission found that section 5 of the Act preserves the right of Western to continue service to Richard Humphry “at such locations where service is located * °
The trial court found the effect of the Commission order to be that Western may serve Richard Humphry but required:
«o o « tjjat Western obtain from the City of Hamilton, authority to extend its line into and within Dirado Lanes area for any additional premises within such area now in existence and [sic] may be created by virtue of approval of a platted subdivision prior to seeking authorization of the Commission; 6 *
The majority would direct the opposite result and permit Western to provide service to the future customers who purchase lots or parcels of land within the subdivision. That conclusion purports to be founded upon the construction of sections 5 and 14 of the Act.
The scope of the sections is to be measured in the terms of the several definitions contained in the Act. Without again quoting section 5, one finds that it preserves the right of a supplier who serves or had contracted to serve “customers at locations.”
The Act defines customers in section 3.3:
“ ‘Customer’ means any person receiving electricity for any purpose from an electric supplier.”
Section 3.12 gives the definition:
‘Premises’ means a physical area (a) which, except for any intervening public or private rights of way or easements, constitutes a single parcel or unit and (b) which a single customer owns, uses or in which it has some other interest in connection with receiving service at one or more points of delivery.” (Emphasis supplied.)
Section 5 refers to “customers at locations,” but we do not find a definition of the word “location” in the Act. The Commission adopted the dictionary definition, “A position or site occupied or available for occupancy.” It is reasonable to conclude that “location” as used in section 5 is synonymous with, or the equivalent of, the defined “premises.” In the context of such terms and definitions, section 5 preserves the right of suppliers to serve existing individual customers who possess or use single units or parcels of land.
Until Richard Humphry sold parcels of land, he was a single customer owning and using a single unit of land. When he sold parcels to his son and to Bain, as to such parcels he ceased to be a single customer owning a single unit of land served by Western. Procuring annexation of a subdivision contemplates a number of different customers owning and using a number of separate units of land. Western argues that such is its expectation.
Absent the conclusion that the first paragraph of section 5 controls, it is clear that part (iii) of section 14 would require that the order of the Commission be affirmed. It provides:
“[N]o such electric supplier which is serving in an area which becomes so annexed to or otherwise located within an incorporated municipality after the effective date of this Act may furnish service to any additional premises or extend its lines into or within such area unless such supplier is or shall become authorized so to do by the incorporated municipality. * 9 (Emphasis supplied.)
Section 14 is consistent with section 5 in its provision that a supplier serving an area which becomes annexed to a municipality may continue to furnish service within the annexed area “to the premises which it is serving at the time of such annexation 9 9 (Emphasis supplied.) The use of the word “premises” found in section 14 must be as such term is defined by statute, i.e., single customer upon separate units of land.
It is the determination of the majority that section 5 controls the operation of section 14 by reason of the language of the latter section:
“Except as otherwise provided in this Section, Sections 5 (other than the first paragraph thereof), * * * do not apply to any area which is located within an incorporated municipality * 9 9.”
From such language it is concluded that the first paragraph of section 5 makes the provisions of section 14 inoperative as to the annexed Richard Humphry subdivision.
In purporting to preserve the rights of a supplier, the first paragraph of section 5 relied upon by the majority is itself qualified by the language “except as otherwise provided in this Act 9 9 Aside from provisions concerning taxes and contracts between electric suppliers, all sections of the Act which precede section 5, all sections which intervene between section 5 and 14, and all sections which follow section 14, pertain to or concern matters of procedure before the Commission or its powers of enforcement. The provisions of section 14 state the only matter to which the language of section 5 “except as otherwise provided in this Act” may be said to be legislatively directed. The majority would thus make that qualifying language of section 5 apply to nothing and in effect meaningless.
One may doubt that it is proper to conclude that the legislature intended that an electric supplier should ride into the town by virtue of having supplied a single farmstead for some years prior to the adoption of the Act in question.
The supreme court has determined that the right of a municipality to control its streets and public facilities gives it the right to permit or to refuse a utility such use by a license or franchise, although no standard was imposed by the legislature. City of Geneseo v. Illinois Northern Utilities Co. (1941), 378 Ill. 506, 39 N.E.2d 26.
In Citizens Utilities Co. v. Illinois Commerce Com. (1971), 50 Ill. 2d 35, 276 N.E.2d 330, Commonwealth Edison provided electricity to municipalities which had granted a franchise to Commonwealth at a scheduled rate but charged a higher rate to other utilities requiring electricity. It was contended that the order of the Commission created an improper rate discrimination. In affirming the rate order of the Commission, the court noted:
“There was evidence upon which the Commission found that Edison’s ability to provide its service within a municipality is dependent upon municipal permission in the form of a suitable franchise ordinance. There was testimony and documentary evidence that Edison’s Rate 24 is offered to municipalities as an inducement to enact suitable franchise ordinances.” (50 Ill. 2d 35, 46, 276 N.E.2d 330, 336.)
That opinion also noted that section 8 — 11—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1969, ch. 24, par. 8 — 11—2) authorized a municipality to tax the distributing and selling of electricity within the corporate limits of the municipality and that such taxes may be in addition to the payment of money or value of products or services furnished to the municipality by the utility as compensation for the use of its streets, alleys, or other public places.
The rationale for the legislative scheme of section 14 seems clearly apparent in that annexation to a municipality contemplates the ultimate development of streets and public places which the municipality is clearly entitled to regulate by ordinance for public health, safety, and general welfare, and under its police power to control and regulate. Western’s thesis would permit it to presently build without municipal authority and without regard for the city’s plan or standards for the control of the facilities which the City of Hamilton is entitled to control through its zoning ordinances and the regulation of streets and public places. A transition from farming use to that of a developed subdivision made without municipal authority obviously would conflict with the effective use of the clear rights of the municipality. It appears proper for the legislature to contemplate such potential for conflict and require Western to procure authority to build in accordance with the standards which the city is entitled to enforce.
A careful examination of the statutory terms and scheme of the Act discloses that there is no conflict in fact between sections 5 and 14 and that it is unnecessary to determine that the language of one section must control the language of the other section.
I would affirm the order of the Commission.