dissenting:
Contrary to my colleagues, I find nothing in the Utilities Act expressing a legislative intent to preempt the local ordinances here at issue enacted pursuant to the Village’s police power and in the interest of public health.
Specifically, the ordinances provide:
“Section 24 — 200. Unlawful Placement of Waste Prohibited.
It shall be unlawful for any person to place, deposit, or permit to be deposited in any unsanitary manner on public or private property within the Village, or on any area under the jurisdiction of the Village, any human or animal excrement, garbage or other objectionable waste.
Section 24 — 201. Unlawful Discharge Into Natural Outlet.
It shall be unlawful to discharge to any natural outlet within the Village, or in any area under the jurisdiction of the Village, any sewage or other polluted waters, except where suitable treatment has been provided in accordance with subsequent provisions of this Chapter.” Village of Bolingbrook, Ill., Public Health Ordinance §§24 — 200, 24 — 201.
In my opinion, these ordinances are entirely compatible with and complementary to the intent of the Utilities Act to grant authority to the Commission to oversee and regulate the day-to-day business operations of public utilities.
Section 1 — 102 of the Utilities Act clearly refers to the regulation of rates charged by public utilities and expresses the intent to comprehensively control those rates. Section 4 — 101, consistent with the stated purpose of the Act, authorizes the Commission to supervise the business of public utilities and to keep informed as to their compliance with other laws. Section 4 — 201 authorizes “the Commission to see that the provisions of the Constitution and statutes of this State affecting public utilities, the enforcement of which is not specifically vested in some other officer or tribunal, are enforced and obeyed, and that violations thereof are promptly prosecuted and penalties due the State therefor recovered and collected.” (Ill. Rev. Stat. 1991, ch. 111%, par. 4 — 201.) Finally, section 4 — 205 provides that “suit for the recovery of one penalty shall not be a bar to or affect the recovery of any other penalty or be a bar to any criminal prosecution against any public utility.” (Ill. Rev. Stat. 1991, ch. 111%, par. 4 — 205.) Read together, these sections of the Utilities Act evince a legislative intent to grant comprehensive regulatory control of the business aspects of public utilities to the Illinois Commerce Commission (Ill. Rev. Stat. 1991, ch. 111%, par. 4 — 101) and to retain the right of the State (e.g., the Environmental Protection Agency) and any other body politic, person or corporation to prosecute claims based on criminal and civil liability (Ill. Rev. Stat. 1991, ch. 111%, par. 4 — 205). See Barry v. Commonwealth Edison Co. (1940), 374 Ill. 473, 478, 29 N.E.2d 1014, 1017 (“[T]here [is] nothing in the [Utilities Act] giving the Commerce Commission authority to determine liability growing out of a discontinuance of service”).
The proper test for determining whether a matter lies within the exclusive jurisdiction of the Commerce Commission or may be acted upon by a municipality was stated in City of Chicago v. Hastings Express Co. (1938), 369 Ill. 610, 615, 17 N.E.2d 576, 578. The court there prefaced its analysis with the observation that “repeal [of a municipal ordinance] by implication is not favored, and that it is only where there is a clear repugnance between two acts, and the provisions of both cannot be carried into effect, that the later law [the Utilities Act] must prevail.” At issue in City of Chicago was the validity of a revenue ordinance requiring a wheel tax or licence fee from motor vehicles engaged as a public utility. The court tested the ordinance by the standard set forth in City of Chicago v. Alton R.R. Co. (1933), 355 Ill. 65, 73, 188 N.E. 831, 834: “The line of demarcation *** lies between such matters as are ‘an intimate part of and of the closest connection with the public utility service and transportation itself,’ on the one hand, which are within the exclusive jurisdiction of the Commerce Commission, and on the other hand those matters which in nowise interfere with or overlap such control by the Commerce Commission.” (City of Chicago v. Hastings Express Co. (1938), 369 Ill. 610, 616.) The court found that inasmuch as the wheel tax ordinance did not involve “regulation of the utility, its instrumentalities or its business,” the ordinance was a valid exercise of the city’s taxing authority. 369 Ill. at 617, 17 N.E.2d at 579.
In similar fashion, by my view, the local ordinances here at issue do not limit or interfere with the Commission’s authority to supervise and regulate the business operations of the public utility. The ordinances are a reasonable exercise of the home rule municipality’s police power for the protection of public health. They do not require the utility to expand its services or meet higher standards than are otherwise required by the Utilities Act or the Commerce Commission. They merely prohibit the unsanitary dumping of animal and human excrement, etc., on public and private property and the discharge of raw sewage into the Village’s natural outlets. I fail to see how these ordinances impede or overlap the Commission’s regulation of the defendant’s services.
Unlike City of Peoria, the ordinances here do not purport to affect the business of the utility by imposing additional services for the benefit of a local entity that may not be required statewide. In City of Peoria the city entered into an agreement with the public utility water company granting the city the power to compel main extensions. On review we found a direct conflict between the Utilities Act’s grant of authority to the Commission respecting utility extensions (Ill. Rev. Stat. 1975, ch. 1112/3, par. 50) and the franchise agreement.
In City of Peoria we cited with approval City of Chicago v. Illinois Commerce Comm’n (1934), 356 111. 501, 510, 190 N.E. 896, 900. That case concerned a city ordinance originally enacted in 1911 which required railroad companies to make certain elevations of their tracks and to construct subways. In 1914, the Utilities Act was enacted, and it granted to the Illinois Commerce Commission exclusive jurisdiction over all phases of grade crossing regulation, including the power to apportion costs and to determine the manner of constructing grade crossings (111. Rev. Stat. 1933, ch. 1112/3, par. 62). The legislature had expressed its specific intent to grant control over the subject matter in question to the Commerce Commission. Thus, the court ruled that, as of the effective date of the Utilities Act, the city lost power to enforce its ordinance: “Neither municipal franchise ordinances which have been accepted and acted upon by grantee utility companies, nor municipal regulatory ordinances passed under legislative authority, can stand in the way of the lawful exercise, by the Commerce Commission, of the regulatory police powers conferred upon it by the General Assembly.” City of Chicago, 356 Ill. at 510.
Here, the majority points to no specific provision in the Utilities Act which grants to the Commerce Commission exclusive jurisdiction to regulate the discharge of raw sewage. In my opinion the Utilities Act does not preempt the ordinances and poses no impediment to the Village’s court action against the public utility defendant.
I would reverse the judgment of the circuit court of Will County and remand this action for further proceedings.