specially concurring.
I applaud the majority's decision not to award attorneys’ fees in this matter, and I concur with almost all of the majority opinion. As to part V. C., 118 Idaho at 144-145, 795 P.2d at 306-307, however, I concur only in the result.
The majority’s title for this section of its opinion, “Franchise Fee is Not a Tax,” is misleading, and the majority has totally misunderstood the issue raised by the plaintiffs concerning the fee. The assertion that “the charge imposed was not a tax but was contract consideration for the franchise granted” is fine as far as it goes. However, the question here is not whether the municipalities and the utilities can legitimately contract for payment by the utilities to the cities “in consideration for the franchise to operate the utilities by the various municipalities.” Rather, the question is whether that payment can legitimately be passed through to the residents of the municipalities in the form of a utility surcharge.
In response to that question, the recent case of Brewster v. City of Pocatello, 115 Idaho 502, 504, 768 P.2d 765, 767 (1988), is informative, although it supports a conclusion exactly opposite to that for which it is cited by the majority. Brewster states the following:
We view the essence of the charge at issue here as imposed on occupants or owners of property for the privilege of having a public street abut their property. In that respect it is not dissimilar from a tax imposed for the privilege of owning property within the municipal limits of Pocatello. The privilege of having the usage of city streets which abuts (sic) one’s property, is in no respect different from the privilege shared by the general public in the usage of public streets.
We agree with appellants that municipalities at times provide sewer, water and electrical services to [their] residents. However, those services, in one way or another, are based on user’s consumption of the particular commodity, as are fees imposed for public services such as the recording of wills or filing legal actions. In a general sense a fee is a charge for a direct public service rendered to the particular consumer, while a tax is a forced contribution by the public at large to meet public needs.
While otherwise argued, we see it clear that the municipal ordinance in question is not designed for the regulation of traffic under the police power, but rather clearly a revenue raising measure.
Id., 115 Idaho at 504, 768 P.2d at 767 (emphasis added).
The surcharge here at issue has far more of the characteristics of a tax than of a fee. While it is technically collected by the utilities, it passes directly through their accounts as payment to the municipalities of *147the franchise fee. Yet the municipalities furnish neither a service nor a commodity to the consumer who pays the surcharge. The surcharge, in essence, is imposed on residents of the municipalities for the privilege of being utility users within the city limits. Since the municipality furnishes no service or commodity, the surcharge is clearly a revenue raising measure.
Thus, according to the standard set forth in Brewster, this surcharge is a tax in sheep’s clothing. Why, then, a special concurrence rather than a dissent? Simply, because the plaintiffs took action against the wrong parties on this issue. Presently it appears to me that the Public Utility Commission allowed the utilities to impose this “surcharge” on their customers. It is therefore the decision of the Commission which should have been appealed. As the plaintiffs did not take that action (at least such an action is not before us on review), I concur in the majority’s affirmance of the summary judgment in favor of the utilities and the municipalities.