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Illini Coach Co. v. Commerce Com.





APPEAL from the Circuit Court of Macon County; the Hon. MARTIN E. MORTHLAND, Judge, presiding.


Appellant, Illini Coach Company, filed two complaints with the Illinois Commerce Commission on May 3, 1949, one against Illinois Highway Transportation Company and the Commerce Commission, and the other against the Illinois Greyhound Lines, Incorporated, and the Commerce Commission. The complaints seek vacation of an order of the commission dated June 25, 1942, by which the commission denied appellant's application for a certificate of convenience and necessity to operate as a motorbus carrier between Champaign and Decatur and between Decatur and Bloomington, and vacation of orders date June 26, 1942, by which certificates were granted to Illinois Highway Transportation Company, to operate as a motorbus carrier between Decatur and Bloomington, and to Blackhawk Motor Transit Company, predecessor of Illinois Greyhound Lines, Incorporated, to operate as a motorbus carrier between Decatur and Champaign-Urbana. On respondents' motions the complaints were dismissed and on appeal the circuit court consolidated the complaints and confirmed the commission's orders of dismissal.

The situation out of which this case arises is as follows: The Illini filed its application for a certificate of convenience and necessity between Champaign and Decatur and between Decatur and Bloomington on April 16, 1942. On the same day, Black Hawk, now Illinois Greyhound Lines, filed its application for a certificate between Urbana and Decatur. On April 22, 1942, Highway applied for a certificate between Decatur and Bloomington. Hearings were had on the applications in due course before an examiner and the cases were marked "heard and taken" on June 24, 1942. On June 25, 1942, the commission entered its order denying Illini's application and on June 26, granted those of Black Hawk, now Greyhound, and Highway. The Illini filed no petition for rehearing and no appeal was taken.

The instant complaints filed before the commission on May 3, 1949, by Illini, alleged that the orders of June 25 and 26, 1942, were entered by the commission without having received or read the transcript of the evidence taken before the examiner and without hearing argument or receiving briefs of the parties. Respondents in this court do not dispute these allegations.

These litigants have been before this court on three prior occasions in the cases of Black Hawk Motor Transit Co. v. Commerce Com. 398 Ill. 542, People ex rel. Illinois Highway Transportation Co. v. Biggs, 402 Ill. 401, and Illini Coach Co. v. Illinois Greyhound Lines, Inc. 403 Ill. 21. The course of the litigation in those cases details the facts out of which this case arises. Suffice it to say that in the Blackhawk case this court held that the commission had no power to rescind its orders of June 25 and 26, except upon petition for rehearing filed in apt time under sections 64 and 67 of the Public Utilities Act. (Ill. Rev. Stat. 1945, chap. 111 2/3, pars. 68, 71.) In the Illinois Highway Transportation case, it was held that mandamus will not lie against the commission to compel rescission of orders entered under the provisions of the statute. In the Illini Coach Company case, it was held that the petitions for rehearing filed January 27, 1948, were too late because they were not filed within thirty days after the service of the orders complained of in accordance with the provisions of the Public Utilities Act. In this proceeding appellant relies upon its contention that the orders of June 25 and 26, 1942, were entered without a hearing as contemplated and required by section 55 of the Public Utilities Act, (Ill. Rev. Stat. 1947, chap. 111 2/3, par. 56,) and were therefore void as being without authority in the statute and in violation of due process of law as guaranteed by the Illinois and Federal constitutions, and that this question is properly raised by the complaints involved herein.

The questions presented are: (1) Whether the orders complained of, entered on June 25 and 26, 1942, are void as violating due process and the provisions of the Public Utilities Act; and, (2) whether their validity may be questioned by complaint filed after the expiration of the thirty-day period provided in the Public Utilities Act for the filing of petitions for rehearing.

There seems to be no question of the commission's power under the statute to enter the orders complained of here and no complaint is made as to any procedure followed by it except the single omission to study and consider the evidence adduced before the examiner. This omission is therefore the basis for appellant's contention that the orders complained of should be set aside. The pertinent section of the statute provides, "Whenever after a hearing the Commission determines that any new construction or the transaction of any business by a public utility will promote the public convenience and is necessary thereto, it shall have the power to issue certificates of public convenience and necessity." (Ill. Rev. Stat. 1949, chap. 111 2/3, par. 56, sec. 55.) Appellant points to the word "hearing" and urges that by that word the statute requires that the commission must itself hear or read the evidence adduced and hear recommendations, and hear arguments, receive and consider briefs, make findings of fact and base its decision thereon; that this duty is not delegable to an examiner and that an order entered on an examiner's recommendation is illegal and void.

Appellant cites the case of Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906. There, an analogous question was raised on an order of the Secretary of Agriculture under the Packers and Stockyards Act of 1921. (U.S.C.A., sec. 181 et seq.) Section 211 of Title 7, U.S.C.A., provides, "Whenever after full hearing upon a complaint made * * *," the Secretary is of the opinion that any rate for stockyard services is unreasonable, unjust or discriminatory, he may make certain orders fixing rates. In a direct proceeding the order of the secretary was attacked on the ground that his order was entered on the recommendation of a subordinate without the secretary having read the evidence or heard the argument. These allegations were stricken on the Government's motion and, on appeal to the United States Supreme Court, it was held that appellant was entitled to have the secretary consider the evidence and that it was error to strike the allegations from the complaint. In Nat. Labor Relations Bd. v. Cherry Cotton Mills, 98 Fed.2d 444, a similar conclusion was reached upon analogous contentions. In State ex rel. Madison Airport Co. v. Wrabetz, 231 Wis. 147, 285 N.W. 504, an award under the Workmen's Compensation Act was attacked in a mandamus proceeding to compel the commission to review the examiner's findings on the ground that the commission did not meet as a body in reviewing the evidence and that the testimony was taken by two examiners, separately. The court there denied the writ of mandamus, but recognized that where the commission is alleged to have committed illegal acts or omitted to observe the rudiments of fair play, then the circuit court may take evidence in relation to such acts or conduct. In Madison Airport Co. v. Industrial Com. 231 Wis. 256, 285 N.W. 757, the plaintiff, in a direct attack upon an award of the Industrial Commission of Wisconsin, upon the ground that the award was made by the commission without addressing itself to the evidence, offered to prove that allegation and the offer was denied. The Wisconsin court held that if the allegations were proved, the action of the commission would be unlawful and it was therefore error to exclude such proof.

The substance of these decisions is that parties before an administrative body exercising quasi-judicial powers are entitled to have that body base its decision upon the facts disclosed by the evidence, and that a failure of such body to acquaint itself with the facts as revealed by the evidence, if proved, is sufficient ground to warrant setting aside its order.

It will be observed, however, that none of these cases purport to hold that such an order is totally void, and the holdings were only that the injured party has a right to have the alleged act or omission reviewed in an appropriate proceeding. The effect of the holding in the Madison Airport case, cited by appellant as persuasive here, was that mandamus did not lie in that case because the defects complained of did not render the judgment void, but voidable, and therefore not subject to collateral attack.

It is settled by the decisions of this court that a judgment rendered by a court having jurisdiction of the parties and the subject matter is not open to attack in any collateral action except for fraud in its procurement, and even if the judgment is so illegal or defective that it would be set aside or annulled on a proper direct application, it is not subject to collateral impeachment so long as it stands unreversed and in force. (Baker v. Brown, 372 Ill. 336; People v. Sterling, 357 Ill. 354; Miller v. Rowan, 251 Ill. 344.) If a tribunal has jurisdiction of the subject matter and of the parties, nothing further is required. (O'Connor v. Board of Trustees, 247 Ill. 54.) Nor does jurisdiction depend upon the rightfulness of the decision, and it is not lost because a decision is erroneous, however erroneous it may be. O'Brien v. People ex rel. Kellogg Switchboard and Supply Co. 216 Ill. 354.

In the instant case there is no suggestion that the commerce commission was without power to act upon the application filed by the utilities involved, nor is there any suggestion that any of the parties were not within the jurisdiction of the commission. The orders entered were concededly within the power granted to the commission under the Public Utilities Act. The sole substantial point on this contention is that the proceedings by which these orders were arrived at were irregular. Such irregularity could do no more than render the orders voidable and subject to be set aside upon a review.

The question remains whether the instant case constitutes a collatteral attack. If so, it cannot succeed. A complete method of review of orders of the Commerce Commission is prescribed in the act. Section 67 of the act provides, "Within thirty days after the service of any rule or regulation, order or decision of the Commission any party to the action or proceeding may apply for a rehearing in respect to any matter determined in said action or proceeding and specified in the application for rehearing." The statute then requires the commission to receive and consider such application and grant or deny it within twenty days, and further provides, "No appeal shall be allowed from any rule, regulation, order or decision of the Commission unless and until an application for a rehearing thereof shall first have been filed with and acted upon by the Commission." (Ill. Rev. Stat. 1949, chap. 111 2/3, par. 71.) Section 68 of the act (Ill. Rev. Stat. 1949, chap. 111 2/3, par. 72,) provides the method for bringing actions to set aside orders of the commission by appeal to the circuit or superior court within thirty days after service of the commission's order or decision refusing an application for rehearing. After setting out in detail the procedure to be followed in prosecuting an appeal, it is then provided, "When no appeal is taken from a rule, regulation, order or decision of the Commission, as herein provided, parties affected * * * shall be deemed to have waived the right to have the merits of said controversy reviewed by a court * * *."

Appellant failed to make application for rehearing of the orders of June 25 and 26, 1942, and prosecuted no appeal as prescribed by the statute. The complaints on which this case arises were filed May 30, 1949, almost seven years after the entry of the orders complained of. The only object of the complaints is to obtain a rehearing of the evidence adduced on the original applications. No matter is alleged which could not have been properly presented on application for rehearing within the time prescribed by the statute. We have held that the statutory method for reviewing orders of the commission is exclusive. (City of Chicago v. O'Connell, 278 Ill. 591.) The constitutional guarantee of due process is not a guarantee against unjust or erroneous decisions. (Baumgardner v. Boyer, 384 Ill. 584.) The failure of appellant to exercise its statutory right to apply for rehearing and to appeal cannot be translated into a denial of due process. Any prejudice to appellant arising out of its failure to take advantage of the adequate procedure for ...

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