dissenting:
I agree with the majority that this case “presents the very narrow question whether, within the ambit of the relevant statutes, defendant was authorized to levy a surcharge on commercial users of the electric services provided by its utility and use those funds for the construction and maintenance of parking lots.” (71 Ill. 2d at 32.) Yet the court states only its conclusion regarding this question; it neither adopts the reasoning of the appellate court invalidating the ordinance nor explains its own rationale. An ordinance is presumed valid and reasonable, and the attacking party has the burden of showing otherwise. (City of Chicago Heights v. Western Union Telegraph Co. (1950), 406 Ill. 428, 432.) The city of Geneva and other Illinois municipalities deserve a more detailed explanation than the majority gives of the shortcomings of this ordinance.
While I am not nearly so certain as my colleagues appear to be that the city could not do as it did here, I am entirely certain that recovery ought not to be permitted for the 13 years during which plaintiff sat by and permitted the city to collect and expend this money. The ordinance imposing this surcharge was publicly debated, passed and published in the local newspapers. Plaintiffs are charged with knowledge of that which may be obtained from public records, and they have constructive notice of the ordinances of their city. (Haas v. Commissioners of Lincoln Park (1930), 339 Ill. 491, 498; see DuMond v. City of Mattoon (1965), 60 Ill. App. 2d 83, 87.) This court said in Pyle v. Ferrell:
“These matters were all of public record, and although appellant claims not to have had notice of any of these matters adverse to his ownership, such pub he records served as constructive notice to him where, as here, the adverse claimant was not guilty of any affirmative act of deception to prevent suspicion and inquiry. (See: Potts v. Alexander, 118 Fed. 885; Briggs v. Buzzell, 164 Minn. 116, 204 N.W. 548.) The test is not what the appellant knows, but what he might have known by the use of the means of information within his reach with the vigilance the law requires of him.” (Emphasis added.) (12 Ill. 2d 547, 554.)
There is no evidence that the city affirmatively deceived plaintiff Ross or any other customer. City personnel were always available during the entire period to explain or itemize an electric bill and did in fact explain the surcharge to many commercial customers. Copies of the commercial rate were readily available. To say as does the majority that “there is no showing that defendant is prejudiced by the fact that the ordinance was not attacked until 13 years after its enactment” (71 Ill. 2d at 34) is simply evading contact with reality. Of course the city is prejudiced. How could it not be? For 13 years without a challenge it collected and expended this revenue to provide adequate parking facilities from which plaintiff Ross and the entire community have benefitted. Had timely complaint been made and upheld, any defects in the ordinance could have been supplied or alternative sources of revenue explored. Thirteen years would not have been irrevocably lost.
I cannot join the opinion of the court.