holding that “rent” charged intermunicipal wire-service providers for their use of a municipality’s rights-of-way were cost prohibitive
How later courts described this case
- holding that “rent” charged intermunicipal wire-service providers for their use of a municipality’s rights-of-way were cost prohibitive
- invalidating a “toll” for the right to lay 85 miles of underground fiber optic cable where state law disallows cities from collecting rent for the use of the right-of-way
- ordinance at issue was a “toll” on fiber optic cables running across the state and through various municipalities
- “home rule units did not exist in this State until after the ratification of the 1970 Illinois Constitution”
Written by the judges who cited it.
Distinguished
Distinguished by City of Chicago v. COMCAST CABLE HOLDINGS, 872 N.E.2d 368 (2007)
Arlington Heights is distinguishable as that case considered nonlocal services.
The opinion
JUSTICE FREEMAN, specially concurring:
Today this court holds municipalities may not exact rent from telecommunications companies met with the obstacle of crossing public streets in the laying of fiber optic cable along private rights of way. I agree. I join in the conclusion that plaintiffs, collectively referred to as AT&T, can only be charged fees associated with the cost of installing the cable beneath the pavement.
But my agreement is limited to the facts of this case. I believe there is too little to tie AT&T to the municipalities by virtue of the particular presence of cable to justify fees amounting to rent. The communications service made possible through the network of cable does not originate or terminate within the municipal boundaries. It merely happens that completion of the network requires AT&T to snake the cable alongside railroad track into and out of the municipalities, inevitably intersecting public streets. AT&T is just passing through, as it were.
I am reluctant, however, to preclude the possibility that different circumstances could justify the types of fees sought to be imposed here. The closer a private entity is joined, economically speaking, to a municipality through use of municipal property, the stronger the argument for fees amounting to rent becomes. A realistic uncertainty as to the nature and extent of future uses of municipal property convinces me that the facts of this case provide no reason to assert such fees could never be proper.
The particular facts also suggest a second, separate point. The majority concludes municipalities do not enjoy proprietary power over public streets. That conclusion seems to beg a more fundamental question: Is a proprietary power implicated by the use at issue here?
The use is the existence of fiber optic cable buried beneath streets for a distance sufficient to traverse street width. Initial installation of the cable is not the use that it is argued justifies the fees sought to be imposed. The use is the presence of cable.
That presence, without other circumstances marrying the use to the municipalities, does not seem to be a use of public property at all, to say nothing of it being an extraordinary one. Unquestionably, such use is different from that which this court has before encountered in determining the propriety of fees amounting to rent in connection with use of public streets. Such use can be characterized as one that compromises enjoyment by the public of the whole of city streets for their normal object: facilitating travel.
For example, in City of Springfield v. Inter-State Independent Telephone & Telegraph Co. (1917), 279 Ill. 324 , and City of Springfield v. Postal Telegraph-Cable Co. (1912), 253 Ill. 346 , rental fees imposed under a municipal ordinance were deemed proper where a telephone and telegraph company exclusively appropriated portions of streets with poles. In Chicago General Ry. Co. v. City of Chicago (1898), 176 Ill. 253 , rental fees were held appropriate for the occupation of city streets by track for a street railway system. There, the court noted that the effect of the use on the public in part justified the fees imposed. Specifically, the railway system on streets designed for normal traffic interfered with normal travel and would encourage avoidance of that street. (Chicago General Ry. Co., 176 Ill. at 257 .) Greater expense and maintenance would be necessary for those streets where track was present as well as others used as alternative routes. Chicago General Ry. Co., 176 Ill. at 257 .
Incidentally, this court’s decision in Broeckl v. Chicago Park District (1989), 131 Ill. 2d 79 , involving neither a street nor the provision of a public service, can be similarly explained. An occupied mooring impedes both the use of that mooring by other members of the boating public and public access, generally, to that portion of the body of water.
It seems right that a municipality, as an arm of the public, could impose fees amounting to rent to the extent that a private endeavor affects normal use of streets, ultimately the public’s property. (See Chicago Motor Coach Co. v. City of Chicago (1929), 337 Ill. 200, 206-07 .) If the justification for such fees depends on recognizing a municipal proprietary power, so be it. If the power is to be limited to situations where the public’s use of public property is compromised (see Postal Telegraph-Cable Co., 253 Ill. at 353 ), fine. After all, as the majority accurately notes, a municipal government can be said to own public property only as trustee for the public.
But the facts of this case do not provide much reason to debate whether a municipal proprietary power exists. Existence of fiber optic cable under streets does not impede the public’s enjoyment of the whole of city streets for permitting travel over and upon. The need to declare that no municipal proprietary power exists is eliminated by the absence of a type of use sufficient to invoke it.
This court has spoken inconsistently on the issue. (See Village of Lombard v. Illinois Bell Telephone Co. (1950), 405 Ill. 209, 216 (stating that powers legislatively granted to municipalities concerning streets are regulatory and do not grant any authority to rent parts of public streets); Inter-State Independent Telephone & Telegraph Co., 279 Ill. at 327 (stating that fees amounting to rent for a public service corporation’s occupation of city streets is the exercise of a proprietary power); Postal Telegraph-Cable Co., 253 Ill. at 353 (stating that rental charges similar to those imposed on telegraph and telephone companies may be imposed on public service companies, not by way of rental but in the exercise of police power); Chicago General Ry. Co., 176 Ill. at 257 (stating that use of a graded street constitutes a bonus permitting a rental fee); see also Broeckl, 131 Ill. 2d at 86 , quoting Inter-State Independent Telephone & Telegraph Co., 279 Ill. at 327 .) The inconsistency is not remedied by the majority’s declaration today that no proprietary power exists. I would not discount such municipal power without greater exploration by the court as to why that should be so.