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Schwartz v. Commerce Com.





APPEAL from the Circuit Court of Du Page County; the Hon. CHARLES A. O'CONNOR, Judge, presiding.


Rehearing denied May 21, 1951.

This case arises out of the application of Leyden Motor Coach Company, hereafter referred to as petitioner, for a certificate of convenience and necessity to operate a bus line along certain streets in the city of Elmhurst, village of Villa Park, and to certain point in the village of Lombard. A number of hearings were had before the commission, where objections were made to the granting of the certificate by the Chicago, Aurora and Elgin Railroad Company. The commission made findings of fact and ordered that a certificate of convenience and necessity issue to petitioner, and upon appeal to the circuit court of Du Page County the order of the commission was set aside, and hence the appeal to this court.

The three municipalities mentioned are adjacent to and contiguous to each other, Lombard being the most westerly, and Elmhurst the most easterly, and are described as being a community of about 25,000 persons, with about 17,000 in Elmhurst, 8,000 in Villa Park and 1,000 in that part of Lombard proposed to be served. The application included some north and south operations as well as the one running principally east and west, designated as route 3, and it is this proposed route 3 which is subject to objection and the source of controversy in this case.

Running through these towns in practically an east and west direction is a street known as St. Charles Road, which is the highway over which the principal branch of route 3 was proposed to operate. In addition to the east and west line through these municipalities it proposes to run some feeder lines several blocks to the south, and back to the main line, so as to afford access to persons living some considerable distance away.

This same territory is traversed by several railroad lines, notably the Chicago and North Western Railroad, the Illinois Central Railroad, the Chicago Great Western Railroad, and the Chicago, Aurora & Elgin Railroad, and other railroads, all leading into the city of Chicago, some twenty miles to the east. None of these railroad companies named in the petition filed any objection thereto except the Chicago, Aurora & Elgin Railroad Co., hereafter referred to as the Aurora Railroad.

At some point in or near the village of Lombard the Aurora Railroad crosses the St. Charles Road, running in an angling and southeasterly direction, and by the time it has reached the proposed eastern terminus of petitioner it runs some quarter of a mile or more to the south of the proposed route, and continues on to its depot in Chicago. The Chicago Great Western operates parallel with or on the same right of way or one adjacent to that of the Aurora Railroad. The Chicago and North Western operates a railroad some half mile to the north of petitioner's route 3, and the other railroads mentioned intersect this territory. The only party appearing to object to the granting of the certificate was the Aurora Railroad, which confined itself to a cross-examination of petitioner's witnesses, and showing the general character of the transportation furnished between these municipalities.

The commission made numerous findings. It described the localities; it found that a large community high school that served not only Elmhurst but Villa Park and parts of Lombard, was located on the north side of the St. Charles Road, the proposed route 3 of petitioner; that 1600 students attend this high school, 550 of whom live in Villa Park and Lombard and the balance in Elmhurst; that there is also a Catholic and a Lutheran High School, a hospital and a college in Elmhurst, and no direct transportation to these institutions for persons residing in Villa Park and Lombard; that north of the proposed route 3, a half mile or more away, is located the Buick Aircraft Engine Plant, which employs approximately 10,000 workers, and the Douglas Aircraft Plant employing that many more; and also to the west side of Elmhurst is a new addition in which some 400 persons reside, all of whom are a considerable distance from transportation, but who will be convenienced by the feeder lines of petitioner, not objected to.

The evidence shows that these three communities are a single community, extending its boundaries to a considerable extent in all directions; that the better stores and places of business are in Elmhurst; the people must walk from a quarter to three quarters of a mile to reach the Aurora Railroad's station to obtain access to other institutions in this community center, and that the Aurora Railroad has not the facilities nor the stations to render the service, nor is it close enough to the homes to enable householders to obtain transportation without walking unreasonable distances to reach it. All of these matters were covered by voluminous proof and extensive findings by the commission.

The Aurora Railroad confined itself to cross-examining witnesses, to showing the general amount of its business, and to attempting to show that the community was already adequately served by existing transportation lines. The above facts are adequately sustained by the finding of the commission. Among the specific findings were the following: "That the local service now rendered by respondent Chicago, Aurora and Elgin Railroad to the residents of the area involved herein is wholly inadequate; that respondent Chicago, Aurora and Elgin Railroad has not proposed to offer the type and character of service which the Commission finds that public convenience and necessity require for the residents of Elmhurst, Villa Park and immediately contiguous territory; that the respondent Chicago, Aurora and Elgin Railroad is not ready, willing and able to perform the service which the Commission finds that public convenience and necessity require in and to the territory involved herein."

Another specific finding was made by the commission that the petitioner had the "necessary facilities, organization, experience and financial resources to enable it to furnish the necessary service to the public in connection with the proposed operation;" and that public convenience and necessity required the institution of the proposed motorbus transportation service, and that petitioner should be granted a certificate of public convenience and necessity.

On appeal to the circuit court the order was reversed and set aside on the ground the order and finding of the commission was contrary to the law, and was without substantial foundation in the evidence. The appellants take the position that the evidence was ample; the findings clear and specific, and that the objections of the Aurora Railroad were ill-founded.

There is nothing in the order of the circuit court to disclose upon what ground the order of the commission was set aside, but when we turn to the brief of appellee it is disclosed there were two reasons urged: (1) That the publication of the notice of the proposed hearing did not comply with the commission's rules; and (2) that the Aurora Railroad was the first in the field of serving this community, and that therefore it was entitled to remain without competition if in appellee's judgment the service was adequate and sufficient.

Appellee relies upon rule 6 of the commission to support the point that proper notice was not published. This rule provides that immediately after the filing of an application with the commission the petitioner shall cause notice to be published at least 15 days prior to the date of the hearing upon the application. The first hearing on February 25, 1941, was not in compliance with the rule, but a new publication was made on March 11, 1941, which complied with the rule, and the first hearing thereafter that affected the application of the petitioner was May 26, 1941. The only evidence that had been heard at the first hearing was the statement of attorneys from the village of Villa Park, but after the legal notice had been published the evidence or statements ...

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