FOURTH DIVISION

									nNoveOVEMBER 7, 2002

1-01-1848

VILLAGE OF MCCOOK, a municipal		)	Appeal from the

corporation,						)	Circuit Court of

								)	Cook County.

		Plaintiff-Appellee,			)	

								)

	v.							)	

								)

ILLINOIS BELL TELEPHONE COMPANY, 		)	

d/b/a Ameritech Illinois,			)	Honorable

								)	Thomas P. Durkin,

		Defendant-Appellant. 		)	Judge Presiding.

	JUSTICE HARTMAN delivered the opinion of the court:

	Defendant, Illinois Bell Telephone Company, d/b/a Ameritech

Illinois, seeks reversal of the circuit court's order denying its

motion to dismiss the complaint filed by plaintiff, Village of

McCook, a municipal corporation, for lack of standing.  Plaintiff

brought suit on behalf of itself and all other Illinois

municipalities and other units of government which, during the

period of May 1993 through the present, sustained damages by reason

of defendant’s failure to collect and remit to plaintiff and the

putative class full surcharge amounts allegedly due under the

Illinois Emergency Telephone System Act (the Act) (50 ILCS 750/0.01

et seq. (West 2000)).  

	On June 14, 2001, this court denied defendant's application

for leave to appeal the circuit court’s order under Supreme Court

Rule 308 (155 Ill. 2d R. 308 (Rule 308)), accompanied by a

certified question.  On October 3, 2001, the supreme court denied

defendant's petition for leave to appeal, but entered a supervisory

order directing this court to "accept this case for a determination

as to the certified question."  Leave to appeal pursuant to Rule 308 was granted on November 9, 2001.  The certified question is as

follows:

"Whether the Village of McCook is authorized,

empowered or has standing under the [Act] to

bring an action for enforcement or for a

violation of sections 15.3(f) and (g) of the

[Act], or whether the [Act] empowers and

authorizes only the Attorney General of the

State of Illinois to bring such an action.  If

McCook is not so authorized, whether the

claims McCook asserted are an impermissible

attempt to enforce the [Act]."

	Emergency communication service 9-1-1 is provided to units of local government by telecommunications carriers, such as defendant,

for a fee based upon the number of exchange access lines in the

municipality.  In order to pay for 9-1-1 services, the Act

authorizes units of local government to impose by ordinance a

monthly surcharge on billed subscribers or customers of the

telecommunications carrier’s services.  50 ILCS 750/15.3(a) (West

2000).  The surcharge, which is collected by the telecommunications

carrier as a separately stated item on the customer’s bill (50 ILCS

750/15.3(f) (West 2000) (section 15.3(f))), and then paid to the

municipality, less a 3% commission for the telecommunications

carrier (50 ILCS 750/15.3(g) (West 2000) (section 15.3(g))),

applies to "in service network connections" located within the municipality (50 ILCS 750/15.3(b) (West 2000)).    

	Plaintiff in its first amended  complaint alleged that in

1992, it adopted an ordinance pursuant to section 15.3 of the Act

(50 ILCS 750/15.3 (West 2000) (section 15.3)), imposing a monthly

surcharge of $.85 per network connection.  In March 1993, defendant

began surcharge collection as required by sections 15.3(f) and (g). 

On May 25, 1993, plaintiff and defendant entered into a written

agreement (the Agreement) pursuant to which defendant agreed to

provide plaintiff with 9-1-1 telephone service in exchange for a

monthly fee, based on the number of exchange access lines in the

municipality.  On June 4, 1993, plaintiff notified defendant that

the 9-1-1 surcharge amounts it had collected were below the

anticipated revenues based upon the number of exchange access

lines, including Centrex and PBX lines, located within plaintiff’s

boundaries.1  Plaintiff contends that since 1993, defendant has collected 9-1-1 surcharge amounts in a manner inconsistent with the

Act's definition of network connection, thereby breaching its

contractual and fiduciary duties to plaintiff and the class.

Plaintiff maintains that the surcharge revenues collected by

defendant were computed using a ratio-based discount that failed to

charge subscribers for each individual PBX and Centrex telephone line they possessed.2  

	Count I of plaintiff’s complaint sought an accounting and a

mandatory injunction "directing defendant to begin collecting

plaintiff's and the [c]lass's surcharge revenues based upon the

total number of plaintiff's and the [c]lass's telephone access

lines located respectively within each municipality's boundaries." 

Count II stated a claim for breach of contract, alleging that

defendant "breached its duties under the contract and

simultaneously its duties under the [Act] when it failed to collect

and remit full and proper surcharges to plaintiff and the [c]lass

in accordance with the [Act's] definition of the term 'network

connection.'"  Count III alleged a breach of statutory duty.  Count

IV, which claimed a cause of action for breach of fiduciary duty,

alleged that defendant "breached its fiduciary duty to plaintiff

and the [c]lass by collecting and remitting 9-1-1 surcharge amounts

based upon less than half the number of telephone access lines,

including Centrex and PBX lines, located within the boundaries of

plaintiff and each Class member, respectively."  

	On February 5, 2001, the circuit court denied defendant's  section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 2000)

(section 2-619)), which had sought dismissal of the cause based

upon plaintiff's lack of authority or capacity to sue defendant for

violations of the Act.3  The court stated that it “did not read the Act to confer enforcement authority only with the Attorney

General.”  The court further found that plaintiff was seeking

damages for breach of contract.

	The circuit court certified the question of law concerning standing under the Act following its denial of defendant’s section

2-619 motion to dismiss.  The standard of review on appeal

therefore, is de novo.  Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 713 N.E.2d 543 (1999).

	I

	The first part of the certified question is whether plaintiff

has standing under the Act to bring an action for enforcement or a

violation of sections 15.3(f) and (g).  Defendant makes several

arguments in support of its contention that plaintiff lacks

standing to bring such an action.4 

	First, defendant argues that the provisions of the Act

demonstrate the legislature’s intent that only the Attorney General

can enforce compliance with the Act.  In interpreting a statute,

the court must ascertain and give effect to the intent of the

legislature.  Board of Education of Rockford School District No. 205 v. Illinois Educational Labor Relations Board, 165 Ill. 2d 80, 649 N.E.2d 369 (1995).  The language of the statute provides the

best evidence of that intent.  Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 561 N.E.2d 656 (1990).  Statutes should be evaluated in their entireties and each provision should be construed in connection

with every other section. Newland v. Budget Rent-A-Car Systems, Inc., 319 Ill. App. 3d 453, 744 N.E.2d 902 (2001).  

	Sections 12 and 15.1 of the Act (50 ILCS 750/12, 15.1 (West

2000)), clearly demonstrate the legislature's intent that only the

Attorney General would enforce compliance with the Act.  Section

12, the general enforcement provision, provides that “[t]he

Attorney General may, in behalf of the Commission or on his own

initiative, commence judicial proceedings to enforce compliance by

any public agency or public utility providing telephone service

with this Act.”  50 ILCS 750/12 (West 2000).  Section 15.1, the

governmental immunity provision, expressly states that “[t]his Section may not be offered as a defense in any judicial proceeding

brought by the Attorney General under Section 12 to compel

compliance with this Act.”  50 ILCS 750/15.1 (West 2000) (section

15.1).  

	Pointing to section 15.1, as well as, sections 15.5 and 15.6

of the Act (50 ILCS 750/15.5, 15.6 (West 2000) (section 15.5,

15.6)), plaintiff responds that the Act contemplates private

lawsuits.   Section 15.1 provides that no local government or any

of its officers, agents, or employees shall be liable for civil

damages resulting from any act or omission in connection with

operating a 9-1-1 system, except for wilful and wanton misconduct. 

Sections 15.5 and 15.6, which require that providers of private or

business switch services provide all end-users with 9-1-1 services

of uniform quality, expressly prescribe for a private right of

action: “[n]othing in this Section shall be construed to preclude

the Attorney General on behalf of the Commission or on his or her

own initiative, or any other interested person, from seeking

relief, by mandamus, injunction, or otherwise, to compel compliance

with this Section."  50 ILCS 750/15.5(e), 15.6(e) (West 2000).  

	Plaintiff is not suing under sections 15.1, 15.5, or 15.6, but

rather under section 15.3 which is silent as to a private right of

action.  The 1994 amendment to the Act, which added sections 15.5

and 15.6, demonstrates that when the legislature intended to

provide for a private right of action it did so expressly.  See

Hamilton v. Safeway Insurance Co., 104 Ill. App. 3d 353, 432 N.E.2d 996 (1982) (finding that if the legislature had intended to grant

a private right of action under section 154-6 of the Insurance Code

it would have done so explicitly.)

	Defendant relies on City of Evanston v. Evanston Fire Fighter’s Ass’n, 189 Ill. App. 3d 233, 545 N.E.2d 252 (1989) (Evanston), in which the issue on appeal was whether the city had standing to bring an action for enforcement or for a violation of

the Solicitation for Charity Act (225 ILCS 460/0.10 et seq. (West 2000) (Solicitation Act)).  In holding that the Solicitation Act

conferred the power to enforce its provisions on the Attorney

General only, the court noted that the act contained numerous

provisions setting forth the Attorney General’s responsibilities,

including section 9(a) which stated “an action for violation of

this Act may be prosecuted by the Attorney General in the name of

the People of the State.”  225 ILCS 460/9(a) (West 2000) (section

9(a)).  The court found that the word “may” in section 9(a) was not

intended to convey that other parties were empowered to bring an

action for an alleged violation of the Solicitation Act, but was

used to allow the Attorney General to exercise his discretion in

enforcing the Solicitation Act.  The court noted that if the

legislature had intended to confer the Acts enforcement powers on

others, it “simply would have said so.”  Evanston, 189 Ill. App. 3d at 259.  

	Defendant argues that the present case is similar to Evanston.  As in Evanston, the Act contains numerous provisions detailing the Attorney General’s compliance and enforcement role.  See 50 ILCS

750/7, 8, 13, 12, 15, and 15.1 (West 2000).5  The Act’s general  enforcement provision is also similar to that found in the

Solicitation Act.  See 50 ILCS 750/12 (West 2000).         

	Defendant further argues that private enforcement of section

15.3 contravenes Article V, section 15 of the Illinois

Constitution, which provides that “[t]he Attorney General shall be

the legal officer of the State, and shall have the duties and

powers that may be prescribed by law.”  The supreme court construed

this provision in People ex rel. Scott v. Briceland, 65 Ill. 2d 485, 500, 359 N.E.2d 149 (1976), and found that "the Attorney General is the sole officer authorized to represent the People of

this State in any litigation in which the People of the State are

the real party in interest, absent a contrary constitutional

directive."  See also  Evanston, 189 Ill. App. 3d at 249. 

	The People of the State of Illinois are the real party in interest here because the Act was intended to benefit the public

generally (sSee 50 ILCS 750/1 (West 2000) (“The General Assembly

finds and declares that it is in the public interest to shorten the

time required for a citizen to request and receive emergency aid”

and “that the establishment of a uniform statewide emergency number

is a matter of statewide concern and interest to all inhabitants

and citizens of the State”)), and it is the general public that

pays the surcharge.  If there is going to be a substantial increase

in 9-1-1 surcharges on business phone systems statewide, the

Attorney General should be representing the public interest.  At

oral argument plaintiff's counsel admitted that the Attorney

General could secure all relief requested by plaintiff in this

case.  Plaintiff's counsel further admitted that it never asked the

Attorney General to file suit in this case.    

	Citing Barth by Barth v. Board of Education of the City of Chicago, 141 Ill. App. 3d 266, 490 N.E.2d 77 (1986) (Barth)6 and City of Chicago v. Illinois Commerce Comm'ission, 294 Ill. App. 3d 129, 689 N.E.2d 241 (1997) (City of Chicago), plaintiff argues  this court previously decided that parties other than the Attorney

General may sue under the Act.  Neither case supports plaintiff's

contention.  Barth addressed neither the issue of standing under the Act, nor involved an alleged violation of the Act.  Rather, Barth involved a negligence claim in which a child’s mother alleged that her son did not receive medical treatment for one hour after

a playground injury from which he later died.  The court found that

the city’s 9-1-1 system was an emergency service under the Act and

not a police protection service so that section 4-102 of the Tort

Immunity Act (745 ILCS 10/4-102 (West 2000)), was inapplicable and

the applicable standard of liability was that found in section 15.1

of the Act (50 ILCS 750/15.1 (West 2000)).  Nor did City of Chicago involve attempts to enforce the Act, but was an administrative

appeal of regulations adopted by the Illinois Commerce Commission

where jurisdiction and standing existed by virtue of Supreme Court

Rule 335(a) (155 Ill. 2d R. 335(a)) and section 10-201(a) of the

Public Utilities Act (220 ILCS 5/10-201(a) (West 2000)).7

	Plaintiff lacked standing under the Act to bring an action for

enforcement or a violation of sections 15.3(f) and (g).  The Act

empowers only the Attorney General to bring such an action.    

	II

	The second part of the certified question is whether plaintiff's claims constitute impermissible attempts to enforce the

Act.  According to defendant, plaintiff is attempting to evade the

Attorney General's enforcement jurisdiction by asserting a barred

statutory violation claim as a breach of contract claim.  Count I seeks a mandatory injunction.  Although termed breach of contract

and breach of fiduciary duty,  counts II and IV are premised solely

upon alleged statutory violations.  "Artful pleading" will not disguise plaintiff's endeavors to enforce the Act.  See Sundance Homes, Inc. v. County of DuPage, 195 Ill. 2d 257, 746 N.E.2d 254 (2001).  

	Plaintiff insists that it is merely suing to recover damages

for defendant’s breach of contract and fiduciary duties and is not

seeking to enforce the Act.  According to plaintiff, the statutory

duties found in sections 15.3(f) and (g) were incorporated into the

Agreement as implied terms.  Plaintiff cites authorities which hold

that, in the absence of language to the contrary, the laws and

statutes pertinent to a contract and in force at the time the

contract is executed are considered a part of that contract as

though they were expressly incorporated therein.  Brandt v. Time Insurance Co., 302 Ill. App. 3d 159, 704 N.E.2d 843 (1998) (holding that requirement in section 154 of the Insurance Code that a copy

of the application be attached to a policy before an insurer could

rely on a misrepresentation contained therein to avoid the policy,

became an implied term of the insurance policy); Lincoln Towers Insurance Agency, Inc. v. Boozell, 291 Ill. App. 3d 965, 684 N.E.2d 900 (1997) (holding that set off provision in section 206 of the

Insurance Code is deemed a part of any contract executed by the

insurer and the producers); S&D Service, Inc. v. 915-925 W. Schubert Condominium Ass'ociation, 132 Ill. App. 3d 1019, 478 N.E.2d 478 (1985) (section 18.2 of the Condominium Act was an implied term of plaintiff’s lease with the developer in the absence of contrary

language in lease); Selcke v. New England Insurance Co.mpany, 995 F.2d 688 (7th Cir. 1993).

	Based on the foregoing cases, plaintiff argues that when

defendant entered into the Agreement to provide 9-1-1 service, it

was deemed to have accepted every duty imposed by the Act as part

of the Agreement, including section 15.3's duty to collect and

remit surcharge revenue in a manner consistent with the Act’s

definition of network connection.  The cases relied upon by

plaintiff do not involve a situation, as here, where the plaintiff

alleged a barred statutory violation claim as a breach of contract

claim.

	In Lehmann v. Arnold, 137 Ill. App. 3d 412, 484 N.E.2d 473 (1985), the court rejected the plaintiffs' attempt to assert a

barred statutory violation claim as a breach of contract claim. 

Plaintiffs brought a breach of contract action against the bank

from which they had borrowed funds to buy their home, after they

experienced flooding problems on their property.  Plaintiffs

alleged that the bank had failed to comply with the provisions of

the National Flood Insurance Act of 1968 (42 U.S.C. sec. 4001 et seq. (1982) (Flood Insurance Act)).  The court recognized the general rule that "the law existing at the time and place of the

making of a contract is deemed a part of the contract as though

expressly referred to or incorporated in it," but affirmed the dismissal of plaintiffs' breach of contract claim after noting that

the Flood Insurance Act did not create a federal private cause of

action for borrowers.  The court refused to recognize a state cause

of action for violation of the Flood Insurance Act. 

	Similarly, the instant Act does not provide for a private right of action for enforcement of sections 15.3(f) and (g). 

Plaintiff's claims are an impermissible attempt to enforce the Act.

	For the reasons stated, the first part of the certified

question regarding whether plaintiff "has standing under the [Act]

to bring an action for enforcement or for a violation of sections

15.3(f) and (g),", is answered in the negative.  The second part of

the certified question regarding whether "the claims [plaintiff]

asserted are an impermissible attempt to enforce the [Act],", is

answered in the affirmative.  The circuit court erred in denying

defendant's motion to dismiss plaintiff's complaint.  Accordingly,

the judgment of the circuit court of Cook County is reversed.

	Reversed.

	GREIMAN and KARNEZIS, JJ., concur.