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Asche v. Rosenfield

OPINION FILED JANUARY 18, 1950.

CLARENCE ASCHE ET AL., APPELLANTS,

v.

W.A. ROSENFIELD, DIRECTOR OF PUBLIC WORKS AND BUILDINGS, ET AL., APPELLEES.



APPEAL from the Circuit Court of Warren County; the Hon. BURTON A. ROETH, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This is a direct statutory appeal by Clarence Asche and seventy-one other motor carriers from a judgment of the circuit court of Warren County confirming an order of the Department of Public Works and Buildings, entered August 13, 1947, which, in turn, affirmed an earlier order of the Department, dated April 25, 1946, granting to George Morrow a certificate of public convenience and necessity for the operation of one three-quarter ton truck as a local carrier, pursuant to the provisions of the Illinois Truck Act. Ill. Rev. Stat. 1949, chap. 95 1/2, par. 240 et seq.

A brief review of certain provisions of the Illinois Truck Act will be helpful in understanding the history of the present controversy and the contentions involved. In 1939, by an amendment to the Public Utilities Act, (Ill. Rev. Stat. 1949, chap. 111 2/3, par. 10,) the Illinois Commerce Commission lost its former jurisdiction over truck carriers. At the same time, the Illinois Truck Act was adopted, thereby placing the control and regulation of trucks in the Department of Public Works and Buildings. The new statute designates numerous types of motor carriers, the two principal classifications being line haul carriers and local carriers. A line haul carrier is any common carrier transporting property by truck in intrastate commerce over regular routes between fixed terminals, while a local carrier is any common carrier, other than a line haul carrier, transporting property in intrastate commerce. By virtue of section 8, the operations of a local carrier must be restricted to a distance not to exceed fifty miles from a permanent base point of operations selected and designated by the carrier, except that any local carrier may, in addition, transport property to or from any point outside his authorized area for any shipper within his area.

Under section 6(a), it is unlawful for any line haul or local carrier to operate or furnish service without a certificate of public convenience and necessity. The same subsection provides that the Department shall issue a certificate to an applicant upon proof being filed (1) of compliance with sections 15, 16 and 17 (truck safety certificate, personal injury and property damage insurance, and cargo insurance,) and section 18 (surety bond for collection on delivery shipments,) if applicable, (2) of compliance with the rules and regulations of the Department, and (3) that the proposed service is required by the public convenience and necessity. Section 6(a) further ordains that, "In determining whether or not a certificate shall be issued, the Department shall give due consideration to the cost of such service to such carriers, the financial ability of the applicant, the condition and congestion of the highways to be traversed, and the adequacy of the transportation service being rendered by other motor carriers in the field sought to be served." Ill. Rev. Stat. 1949, chap. 95 1/2, par. 245(a).

Stated in chronological order, the facts relevant to the present controversy are, as follows: On February 23, 1946, George Morrow filed with the Department an application for a certificate as a local carrier of livestock and farm commodities with a base point of operation at Joy. The town of Joy is about thirty-five miles southwest of Moline. Morrow reported assets and liabilities showing a net worth of $20,500. In response to a question as to "all motor carriers known to applicant with whose trucking services the operations described in this application will be competitive," Morrow listed Ivan Nelson, Joy, Illinois, and four other carriers located in surrounding towns.

A hearing on the application was held on March 18, 1946, at Rock Island, before an assistant commissioner. Although the Department sent notices of the hearing to all competing carriers listed in the application, the only persons who appeared were Morrow and two witnesses called by him. Morrow testified that he commenced trucking operations in January, 1946; that he owned a 1942 Dodge three-quarter ton pick-up truck; that he did not intend to add to his equipment; that, in addition to livestock and farm commodities, he also wanted authority to transport building materials, coal and machinery; that he had a green safety sticker on his truck; that he had taken out personal injury, property damage and cargo insurance but did not have the policies on file with the Department or in his possession at the hearing, and that he made no collection on delivery shipments. Morrow further testified that it cost him about ten cents a mile to operate; that traffic conditions in his area are about normal; that there are several carriers holding certificates operating in the area he proposed to serve, and that there is a shortage of trucks in the area.

Robert Stahl, a witness, stated he resided in Moline, knew Morrow and was familiar with trucking requirements in the area. He added that transportation requirements in the area exceeded the number of trucks available, that three or four more trucks could be used, and that Morrow was well equipped to handle trucking service. The other witness, Robert Lawrence, also resided in Moline, knew Morrow, said he was familiar with truck requirements in the area proposed to be served, and stated that additional trucks are necessary.

The examiner recommended that a certificate issue, as requested, upon compliance with the insurance provisions of the statute. Subsequently, Morrow filed his policies with the Department and, on April 25, 1946, the Director of the Department made the following findings of fact: (1) applicant is qualified financially and by training and experience to efficiently perform the proposed trucking service; (2) there is a public demand and need for additional trucking services of the type sought to be performed in the area proposed and such additional trucking operations will not unduly congest the highways in the area, and (3) that applicant has filed proof of compliance with sections 15, 16 and 17 of the Illinois Truck Act and the rules and regulations of the Department. Thereupon the Department entered an order granting Morrow a certificate as a local carrier with a base point at Joy.

On May 25, 1946, the complainants, Clarence Asche and seventy-one other local carriers, filed a complaint with the Department against Morrow, hereinafter called respondent, alleging that the certificate granted to respondent had been issued in violation of the Illinois Truck Act. Complainants charged a failure to give notice of the hearing on respondent's application to all competing carriers, failure to prove the statutory prerequisites to the issuance of a certificate, failure to serve the order on any competing carrier and that the issuance of the certificate was contrary to the stated purposes of the statute to conserve highways, to reduce traffic hazards and accidents, and to prevent ruinous competition by promoting a sound economical and efficient system of highway transportation.

Respondent filed a motion to dismiss the complaint, averring, among other things, that complainants had failed to show that any one of them is entitled to question the Department's issuance of a certificate to him. The Department entered an order dismissing the complaint and respondent prosecuted an appeal to the circuit court of Warren County. The circuit court held that, since complainants had not been given notice and made parties to the hearing on respondent's application for a certificate, they were not barred from filing a complaint under section 31 and had a right to be heard on the issue of the validity of the order granting respondent a certificate. Accordingly, judgment was entered reversing the order of the Department and remanding the cause to the Department for further proceedings on the complaint.

Respondent then filed an answer, denying the material allegations of the complaint and again denying the right of complainants to a hearing before the Department on the matters set forth in the complaint. On motion of complainants, the latter allegations were stricken and the cause proceeded to a hearing. To obtain an order vacating and setting aside the order granting respondent a certificate, complainants introduced all the contents of the Department's file on respondent's application, a copy of the rules of procedure and practice of the Division of Motor Carriers of the Department of Public Works and Buildings, and a list of all the complainants, prepared by the chief clerk of the Division of Motor Carriers, showing their respective base points, types of certificate and dates issued, and the commodities they were authorized to transport. In addition to the chief clerk, the only other witnesses were three of the complainants and the respondent.

On August 13, 1947, the Department entered an order affirming its original order of April 25, 1946. The order was based on findings of fact, as follows: that, in accordance with the rules of practice and procedure in effect on the date the application was filed, respondent had given the names and addresses of all carriers known to him with whom he would compete; that the Department served all competing carriers so listed with written notices of the hearing on respondent's application; that, at the hearing, respondent proved compliance with sections 15, 16 and 17 of the Illinois Truck Act and that section 18 was not applicable; that respondent had submitted proof of his cost of operation, his financial ability, the condition of his equipment, the condition and congestion of the highways to be traversed and the adequacy of transportation service being rendered by other motor carriers; that the Department had given due consideration to all the foregoing factors in issuing its order granting a certificate, and that all notices required to be served under the statute, or under the rules of practice and procedure, were served.

From the Department's order of affirmance and a subsequent order denying a rehearing, the complainants prosecuted an appeal to the circuit court of Warren County. Upon review, the circuit court found that complainants had failed to prove the allegations of their complaint and entered judgment confirming the order of the Department.

As grounds for reversal, complainants assert that the circuit court erred in holding that they had failed to prove the allegations of their complaint. The substance of their argument is that the findings of fact upon which the Department based its order of April 25, 1946, are not supported by the evidence. Respondent, on the other hand, contends (1) that complainants were not necessary parties to the proceeding on his application for a certificate and, consequently, had no right to reopen the proceeding; (2) that, in any event, they had no right to compel the Department to conduct a hearing upon the validity of its original order; (3) that they had no right to appeal from the ...


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