dissenting:
The motion of defendant, Peoples Gas Light and Coke Company (Peoples Gas), to dismiss was first heard by Judge James C. Murray. He denied the motion. Later, Peoples Gas filed a motion to reconsider the motion to dismiss, which was heard by Judge Thomas J. O’Brien. Judge O’Brien reconsidered the motion and dismissed the complaint. In my opinion Judge Murray’s ruling was correct. I believe that the City of Chicago Gas Ordinance (Chicago Municipal Code §§187 — 1 to 187 — 19 (1933)) falls squarely within the purview of the home rule provisions of article VII, section 6(a), of the Illinois Constitution. The Gas Ordinance (Ordinance), including sections 187 — 7 to 187 — 18 under the subtitle of “Inspection of Meters,” is a legitimate exercise of power pertaining to the City of Chicago’s “government and affairs” as provided for in article VII, section 6(a), of the Constitution. It is not a local regulation of a public utility in the sense contemplated by the Public Utilities Act (Act) (Ill. Rev. Stat. 1987, ch. 1112/3, par. 8 — 301). The Ordinance is therefore not preempted by the Act or the gas meter regulations promulgated by the Illinois Commerce Commission (Commission). Accordingly, I would reverse the order granting the motion of Peoples Gas to reconsider and to dismiss, and I would reinstate the prior order of Judge Murray denying the motion to dismiss.
The present Ordinance has long antecedents in Chicago’s history. The 1863 charter of the City of Chicago, amending the original charter of 1837, conferred upon the common council (as the present city council was then called) broad powers respecting the inspection and enforcement of weights and measures with respect to “merchandise or property of any description.” Accordingly, inspection of gas meters has been the subject of various enactments of the City of Chicago (City) from the turn of the century in which the frequency of inspections has been changed from every four years to the present seven years. The responsibility for such inspections has devolved upon or been assigned to different bureaus and departments of the City. Currently it is vested in the department of consumer services, renamed from the department of consumer sales, weights & measures. Because of the special importance attached to the accuracy and safety of gas meters, the City has long maintained a staff of trained gas meter inspectors.
In denying the motion to dismiss, Judge Murray correctly observed that a municipal requirement that gas meters be inspected, tested, calibrated, certified, sealed and periodically retested and re-certified is both a weights and measures provision and a health and safety regulation for the benefit of the City’s inhabitants. It has nothing to do with the regulation of rates of public utilities.
The majority concludes that the validity of the gas meter inspection ordinance is not saved by the home rule powers of the City because the State has recognized a “statewide concern” over the subject by enacting section 54 of the Act and therefore the City Ordinance is “preempted.” It is true that section 54 of the Act conferred authority upon the Commission to set standards for quantity measurement of a utility’s product or service, and to promulgate reasonable regulations to “secure the accuracy of all meters and appliances for examining, measuring or testing” a utility’s service, product or commodity. (Ill. Rev. Stat. 1983, ch. 1112/3, par. 54 (now Ill. Rev. Stat. 1987, ch. 1112/3, par. 8 — 301).) It is notable, however, that although the original Act was adopted in 1913, repealed and reenacted in 1921, no rules or regulations were published by the Commission on that subject until the issuance of its General Order 159, effective July 1, 1965. For the first time, the Commission specifically addressed the subject of gas meter inspections by providing for the 10-year frequency of testing by “statistical sampling techniques.”
The conclusion of the majority that regulation of gas meters was withdrawn from municipalities as early as 1913 and exclusively vested in the regulatory agency first known as the Public Utilities Commission (Ill. Rev. Stat. 1913, ch. 111a, par. 1) and later the present Commission is not tenable. Because of the long period of time in which there was a nonexercise of authority on the subject by the Commission and its predecessor, a regulatory vacuum would have existed if the majority’s conclusion were true. Plainly, it could hardly have been the intention of the General Assembly or the Commission that gas meters were to be a “do as you please” subject for companies supplying gas to the inhabitants of the State. The remarkably long nonexercise of authority by the Commission and its predecessor demonstrates that the legislature never intended to vest exclusive, i.e., preemptive, authority over periodic and regular official inspection and calibration of gas meters. Obviously, the Commission was satisfied with the exercise by local governments of their authority over the subject within the purview of their police powers.
I acknowledge that regulation of the field of public utilities is vested exclusively in the Commission by the Public Utilities Act. (Peoples Gas Light & Coke Co. v. City of Chicago (1984), 125 Ill. App. 3d 95, 465 N.E.2d 603.) However, it does not follow as the majority concludes that the regulation of a measuring device such as a gas meter is a “regulation of the public utility business” in the sense contemplated by the Act or as the term “regulation” is used in the Act. Even before the expressly vested home rule powers of the 1970 Constitution, a number of early Commission decisions recognized that cities and villages could exercise certain police powers which did not involve distinctive public utility features or uses as long as the exercise of such powers did not tend to defeat the objectives of the Act. City of Chicago v. Alton Ry. Co. (1933), 355 Ill. 65, 74, 188 N.E.2d 831, 834; City of Geneseo v. Rlinois Northern Utilities Co. (1941), 378 Ill. 506, 514, 39 N.E.2d 26, 31.
The majority opinion fails to demonstrate that the City’s long history of regulating the accuracy and safety of gas meters in any way defeats the objectives of the Act, especially in view of the regulatory vacuum created by the Commission’s prolonged nonaction on the subject. Further, as hereafter shown, there is no basic conflict requiring application of the preemption doctrine on concurrent regulation by the City and the Commission on the subject of gas meter inspections.
Moreover, under the weights and measures powers vested in the City from the time of its charter as a local government, it has undeniable authority to regulate, inspect and test all kinds of scales and measuring devices. This fact must be taken into account here. I therefore agree with Judge Murray’s conclusion wherein he stated:
“I feel absolutely convinced that the City has home rule powers to check meters the same way they have home rule powers to check gasoline pumping stations or other types of measuring devices. I can’t see why suddenly a public utility’s measuring device is somehow beyond the local jurisdiction.”
There is no generic difference between the measuring device of a gasoline pump and that used in measuring the accuracy of natural gas. A municipal program to insure the accuracy of measuring devices used in any business enterprise (e.g., a butcher shop, a grocery store or a coal yard) is not a regulation of the business of that enterprise in the sense of governing the price of the commodity so that it would be a distinctive public utility feature. It follows that the City is not treating Peoples Gas, as a public utility, any differently than it does any other business enterprise using a measuring device when its Ordinance requires that there be periodic testing, calibrating and sealing of gas meters. In addition, as a safety regulation, the periodic inspection of gas meters by the City is not qualitatively different than the City’s requirement that the use of its streets, alley and roadways be safe notwithstanding their use by Peoples Gas.
Although noting that article VII, section 6(m), of the Illinois Constitution mandates that the “[pjowers and functions of home rule units shall be construed liberally,” the majority holds that the Ordinance is not a valid exercise of home rule powers within the grant of article VII, section 6(a), citing County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 389 N.E.2d 553. I believe the majority’s interpretation- and reliance upon Sexton is unfounded. I believe the rationale of Sexton supports the position of plaintiff rather than that of Peoples Gas. Sexton, along with other recent home rule decisions, illustrates the point that the existence of a “statewide concern” does not of itself preclude the existence of home rule powers where there is also a local concern. Where concurrent jurisdiction may be exercised, if there is no actual conflict between a home rule regulation and a State provision on the subject, preemption does not come into operation.
In addition, home rule units may exercise and perform concurrently with the State any function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise of such function, or specifically declare the State’s exercise of such function to be exclusive. (Sexton, 75 Ill. 2d at 507-08, 389 N.E.2d 553, 559-60.) Here, the majority acknowledges that the legislature “has not specifically denied or limited home rule powers over the regulation of public utilities since 1970.” (173 Ill. App. 3d at 703.) Indeed, it is undeniable that the legislature has not acted specifically to deprive home rule units of concurrent jurisdiction over gas meter inspections.
Moreover, under the established home rule doctrine, in order for the State to assert exclusive jurisdiction when confronted with a local regulation of the same subject, the area must be “one of overriding statewide interest.” (City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 115, 421 N.E.2d 196 (upholding the validity of Evanston’s landlord/tenant ordinance notwithstanding the existence of a State statute on the same subject).) In upholding the municipality’s concurrent power with the State in regulating the minimum age for the sale to and the consumption of alcoholic beverages by persons in the municipality, in Illinois Liquor Control Comm’n v. City of Joliet (1975), 26 Ill. App. 3d 27, 30-31, 35, 324 N.E.2d 453, 454-55, the court stated:
“The plaintiff-commission contends initially that liquor control is a subject exclusively for State law and that the broad grant of home-rule power as found in the 1970 Illinois Constitution, article VII, section 6(a), was not intended to cover the regulation of alcoholic beverages. We do not agree with this contention. The Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43, pars. 94 et seq.) was passed in 1933 and constitutes the general framework for the regulation of the liquor industry in the State of Illinois. *** It is true that *** the cases *** have held that municipalities may not regulate the liquor industry except as expressly permitted by the State. [Citations.] These expressions in the Illinois Supreme Court are simply a statement of the so-called ‘Dillon’s Rule,’ so labeled because if found expression in 1 Dillon, Municipal Corporations 448 (5th ed. 1911). The so-called rule is a pronouncement to the effect that a local government has only those powers expressly conferred upon it by the State, together with such powers as may be fairly implied or incidental thereto. This rule, however, is not applicable in the case of home-rule municipalities, and such municipalities may freely govern themselves except as restricted by the State, according to the home-rule provisions of the 1970 Illinois Constitution, article VII, section 6 [citations]. * * *
Liquor control is unquestionably a matter involved in the protection of public health, safety, morals and welfare [citations]. It is apparent that the control of liquor has been a power and function pertaining to government and the affairs of a municipality — a fact which was recognized by the legislature over the years as it continued to give local governments broad power to determine local liquor regulations.” 26 Ill. App. 3d at 30-31.
“Given the language and the spirit of the home-rule provisions in the constitution, and, also, the recent Illinois Supreme Court decisions, we are extremely reluctant to strike down a home-rule ordinance as conflicting with State law, unless the legislature has clearly manifested an intention that such should be the result.
* * *
We must conclude, therefore, on review of the Constitutional Convention Proceedings, the provisions in the constitution, the State statutes, as well as the precedents in the Illinois courts, that the Joliet ordinance [minimum age of 21 for the sale to or the consumption of alcoholic beverages] may stand together with the State law [minimum age of 19 for the sale to or the consumption of alcoholic beverages] ***.” 26 Ill. App. 3d at 35-36.
I submit that within the context of the principles stated in Illinois Liquor Control Comm’n v. City of Joliet, there is no difference between a municipality’s legitimate home rule power as it pertains to liquor control and a municipality’s legitimate home rule power as it pertains to the inspections of gas meters.
Moreover, unlike public utilities which serve multiple municipalities and communities, Peoples Gas is a public utility serving only the City. Since defendant is a public utility serving only the City, there is no need here for statewide uniformity. Absent any need for statewide uniformity in a given area, numerous home rule decisions have concluded that the statutory scheme that was involved was not intended by the legislature to be exclusive. Sexton, 75 Ill. 2d 494, 389 N.E.2d 553; Create, Inc., 85 Ill. 2d 101, 421 N.E.2d 196; Illinois Liquor Control Comm’n v. City of Joliet (1975), 26 Ill. App. 3d 27, 324 N.E.2d 453; City of Rockford v. Gill (1979), 75 Ill. 2d 334, 388 N.E.2d 384; Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, 357 N.E.2d 1118; Winokur v. Rosewell (1980), 83 Ill. 2d 92, 414 N.E.2d 724; Sommer v. Village of Glenview (1980), 79 Ill. 2d 383, 403 N.E.2d 258.
The majority relies heavily upon Peoples Gas Light & Coke Co. v. City of Chicago (1984), 125 Ill. App. 3d 95, 465 N.E.2d 603. In that case, the court affirmed the trial court’s ruling that the Chicago Gas Turnoff Ordinance was an impermissible regulation of a public utility in an area preempted by the State and vested in the Commission. However, in that case the court stated;
“The existence of State regulation in a given area has not always resulted in a finding that the area is not one pertaining to local government and affairs. ***
* * *
The above cases have attempted to define the division of power between the State and local government by construing the ‘pertaining to’ clause of section 6(a). Taken collectively, they stand for the proposition that the limits of home rule should initially be determined by examining the exercise of local governmental power in order to resolve whether or not the matter is one of sufficient local concern as opposed to statewide concern.” 125 Ill. App. 3d at 99, 465 N.E.2d at 607.
Thus, Peoples Gas Light & Coke Co. is readily distinguishable from the case at hand. A municipal ordinance regulating a gas company in terms of when service may be shut off not only conflicts with the concept of statewide uniformity excluding home rule regulations, but such regulation directly impinges on the utility’s ability to collect revenue for its service, which is a subject peculiarly within the jurisdiction of the Commission. Here, however, the City’s enforcement of its gas meter inspection ordinance does not conflict with the concept of a statewide uniformity concern, and it does not in any way impinge on Peoples Gas’ ability to collect revenue for its service. It is worth noting that Judge Murray found that the gas turnoff ordinance was an impermissible interference with the rate-making process and therefore invalid, but in denying defendant’s motion to dismiss the instant complaint, he found no such impediment to the gas meter testing ordinance.
The majority quotes the following passage from Peoples Gas Light & Coke Co.: “ ‘The regulation of all aspects of utility business and service has long been held to be the exclusive province of the [ICC] [citations] and the exclusivity of the [ICG’s] jurisdiction has been repeatedly upheld [even] against the assertions of municipal authority over matters of health and welfare [citations].’ ” (173 Ill. App. 3d at 709-10, quoting Peoples Gas Light & Coke Co., 125 Ill. App. 3d at 101.) The citations omitted from the quotation, however, are cases which antedate the home rule provisions of the Illinois Constitution of 1970; Village of Apple River v. Illinois Commerce Comm’n (1960), 18 Ill. 2d 518, 523-25, 165 N.E.2d 329, City of Chicago v. Hastings Express Co. (1938), 369 Ill. 610, 615, 17 N.E.2d 576, and Chicago Motor Coach Co. v. City of Chicago (1929), 337 Ill. 200, 209-10, 169 N.E. 22. Moreover, the local regulation that was involved in each of those cases was struck down because there was an antagonistic conflict with an in-place State regulation. That is not the situation in the present case.
Here, given the long period in which the Commission failed to implement its power to regulate gas meters while the City consistently exercised such jurisdiction, it is inferable that the State deferred to local regulation and was content with concurrent jurisdiction. Moreover, when the Commission did promulgate General Order 159 and its provisions relating to the inspection of gas meters every 10 years, that did not create any antagonism between the Commission’s regulation of gas meters and the City’s Ordinance. As the court in City of Chicago v. Bartels observed with respect to an alleged conflict between a State Act and a city’s weights and measures ordinance on the same subject:
“In our opinion the grounds urged against the validity of the ordinance are not well founded. We find nothing in the Act relative to weights and measures indicating an intention, expressly or impliedly, to change, alter or repeal any provision of the Cities & Villages Act. There is no necessary antagonism between the Acts.
* * *
*** It is well settled, we think, that under its police power any reasonable regulation by the city is proper regarding the public health, welfare, safety or morals of its inhabitants. The public welfare and morals of the citizens are involved in giving true weights and measures in the sale of commodities.” City of Chicago v. Bartels (1909), 146 Ill. App. 180,186.
See also City of Chicago v. Waters (1936), 363 Ill. 125, 1 N.E.2d 396, aff’d sub nom. Hauge v. City of Chicago (1937), 299 U.S. 387, 81 L. Ed. 2d 297, 57 S. Ct. 241; Jones v. City of Chicago (1952), 348 Ill. App. 310, 108 N.E.2d 802.
While the majority states that Bartels and Waters are inapposite, the inescapable fact is that there is no “necessary antagonism” between the Commission’s general order relating to gas meter inspections and the City’s Ordinance. The latter mandates that no gas meter “after having been tested and sealed” by City inspectors “shall be allowed to remain in service longer than seven years before being again tested and sealed” by City inspectors. (Chicago Municipal Code §187 — 12 (1933).) On the other hand, under the Commission’s General Order 159 as revised, the utility is required to test meters every 10-year period on a statistical sample basis. No staff of inspectors is involved under the Commission’s order. Thus, it is clear that if the City’s Ordinance is enforced there is no reason why Peoples Gas could not also simultaneously comply with the Commission’s order. The fact that the City’s Ordinance requirement may appear more stringent than the Commission’s order requirement does not, of itself, present an antagonistic conflict.
Finally, the Ordinance was sustained by Judge Murray not only as a permissible weights and measures ordinance, but also as an ordinance within the ambit of the City’s police power for the protection of the public safety. The amended complaint makes these allegations, which we are required to accept as true:
“[T]hat for the seven-year period next before the filing of this lawsuit Peoples Gas has experienced a great increase in leakage of gas from its physical system and thereby has enhanced the potential for fires, explosions, fatal and non-fatal injuries and property damage ***. That the deterioration of defendant’s gas meters and its failure to reinspect and retest the same *** constitutes a material or contributing proximate cause of said increase in gas leakage and resulting fires, explosions and other destructive catastrophes costly in life, limb and injurious to the health, welfare and safety of the citizens of the City.”
Surely, the City with its undeniable police power to protect the public safety could act to take safety measures in the form of regularly scheduled gas meter inspections to prevent and stop gas leaks in the gas mains and pipes within the City, notwithstanding the jurisdiction of the Commission to regulate Peoples Gas’ equipment. It follows that the Ordinance is sustainable as being within the purview of the City’s police power for the protection of the public safety. The majority is therefore wrong in not recognizing the validity of the Ordinance as a legitimate exercise of the City’s police power for the benefit of the public safety.
Accordingly, I would reverse the order granting the motion of Peoples Gas to reconsider and to dismiss, and I would reinstate the prior order entered by Judge Murray denying the motion to dismiss. I would also remand the case for further proceedings.