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Chicago Junc. Ry. Co. v. Commerce Com.





APPEAL from the Superior Court of Cook County; the Hon. JOHN A. SBARBARO, Judge, presiding.


Rehearing denied September 15, 1952.

This is an appeal from a judgment of the superior court of Cook County, which affirmed an order of the Illinois Commerce Commission.

This action originated with the filing of a petition by the city of Chicago asking that the commission order the replacement of a viaduct over Ashland Avenue in Chicago and apportion the cost thereof between the city and the Union Stock Yard and Transit Company of Chicago and the Chicago River and Indiana Railroad Company, the latter individually and as lessee of the Chicago Junction Railway. The Union Stock Yard and Transit Company appeared before the commission, but its motion to be dismissed was granted in the commission's final order.

The pertinent facts which were disclosed at the hearing showed that Ashland Avenue is a north and south public street in the city of Chicago, which has been widened from its original 80 feet to 100 feet for some nineteen miles, and the petition herein sought to eliminate one of the remaining narrow points in the street. The present forty-year-old bridge, which crosses Ashland Avenue between Thirty-ninth and Forty-first Streets, constricts the street's useable width to some 64 feet, which is further narrowed to 44 feet at the actual point of passage under the bridge. The grades have been separated by excavating Ashland Avenue some 10 feet and putting the railroad tracks on a 7-foot elevation above the normal street grade. The excavation causes a constant drainage problem. In the center of the street, and under the bridge, is a center pier between two streetcar tracks. Passageways for the streetcars and traffic are 20 feet, 6 inches on each side of the center pier. Ashland Avenue is designated as an interstate trucking route, and near the bridge in question there is a congested industrial and commercial area to and from which a great deal of traffic flows. Some 500 trains move over the bridge each day, and a traffic count on June 15, 1949, showed that more than 21,000 vehicles passed under the bridge in a 16-hour period. A traffic light south of the bridge is difficult to see because of girders and columns supporting the bridge. Drainage problems sometimes cause only one lane under the bridge to be usable.

Following the hearing, the commission found that the bridge in existence severely constricted the usable width of Ashland Avenue; that it was not sufficiently strong to support weights of trains which reasonably should use it; that public convenience and safety required its removal and replacement by a structure built to modern standards which would provide reasonable and adequate facilities for both highway and railroad purposes. The commission thereupon ordered that the cost of the replacement structure be paid 65 per cent by the petitioner, and 35 per cent by the railroads.

To support their contention that the judgment of the superior court of Cook County should be reversed, appellant railroads contend that the order is void for insufficient findings of fact; that the findings are not supported by the evidence; that the order is not supported by the evidence; that the order does not comply with section 58 of the Public Utilities Act; and that the order deprives appellants of property without due process of law, denies them equal protection, unduly burdens interstate commerce, and that therefore section 58 of the Public Utilities Act is an improper delegation of legislative authority.

The scope of review allowed in appeals from final orders of the Illinois Commerce Commission is limited. Authority to review is derived from the Public Utilities Act, (Ill. Rev. Stat. 1951, chap. 111 2/3, par. 72,) section 68 of which provides that the findings and conclusions of the commission on questions of fact are to be held prima facie to be true, and the commission's order shall not be set aside unless it clearly appears that the finding of the commission was against the manifest weight of the evidence or that the order was without the jurisdiction of the commission.

There is here no doubt of the jurisdiction of the commission to pass on the merits of the factual situation. Appellants are clearly within the statutory definition of the term "public utilities" as set forth in section 10-3 of the Public Utilities Act, and section 58 of the act confers upon the commission the power by its order to require the reconstruction or improvement of any crossing of any railroad across any highway or public road, at whatever level, where after a hearing the commission finds that such reconstruction or improvement is necessary to preserve or promote the safety of the public or of the employees or passengers of such railroad, and the commission is given the power to apportion the cost of such improvement or reconstruction which it finds necessary between the parties involved. Therefore, the order of the commission here is within its powers if sustained by the evidence. Illinois Central Railroad Co. v. Franklin County, 387 Ill. 301.

The appellants object to the commission's order on the ground that it contains insufficient findings of fact. We find no merit in that contention. It is not necessary that a particular finding be made as to each evidentiary fact or claim. (Chicago, Burlington and Quincy Railroad Co. v. Commerce Com. ex rel. Brotherhood of Railroad Trainmen, 364 Ill. 213.) The commission found in brief that the bridge in question was some 40 years old, and is in a deteriorated condition, that it severely constricted the usable width of Ashland Avenue, and that the public convenience, safety, and necessity required the removal of the old bridge and its replacement by a new one built to modern standards.

In Chicago & West Towns Railways, Inc., v. Commerce Com. 397 Ill. 460, 467, we said, "The statute requires the commission to make findings of fact upon the issues from the evidence in the case, which must be such as to enable a court to intelligently review the decision of the commission and ascertain whether the facts offered a reasonable basis for the order entered." We believe that the findings of fact by the commission, which need not recite each bit of evidence which leads to the conclusion of fact, are sufficient to support the order, and are in compliance with the terms of the statute.

Having decided that the facts found support the order, the statute and prior decisions require that we determine whether the findings are based on substantial evidence. (Commerce Com. v. New York Central Railroad Co. 398 Ill. 11; O'Keefe v. Chicago Railways Co. 354 Ill. 645; Chicago and Eastern Illinois Railway Co. v. Road Dist. No. 10, 353 Ill. 160.) In Chicago, North Shore and Milwaukee Railroad Co. v. Commerce Com. ex rel. Department of Public Works, 354 Ill. 58, 73, we commented, "From the mere fact that the order of the Commerce Commission does not comment upon the evidence of the railroad companies it does not follow that such evidence was not considered by the commission. * * * While we might not be disposed to agree in the first instance with the cost of the proposed improvement as apportioned between the appellant and the appellees, yet under the decisions of this court our investigation is limited to the question of whether or not the commission acted within the scope of its authority and whether its findings are without any foundation in the evidence, or whether a constitutional right has been infringed by such findings." And, more recently, in City of Granite City v. Commerce Com. 407 Ill. 245, this court said that where the record is cumbersome, the commission cannot state the evidence in detail, and that, after an examination of the evidence, the court was not justified in saying that the order was contra to the manifest weight of the evidence. Where the sufficiency of the evidence to support the order of the commission is questioned, the order cannot be set aside unless it is clearly against the manifest weight of the evidence. South Chicago Coal and Dock Co. v. Commerce Com. 365 Ill. 218.

We have carefully examined the evidence in the instant case and conclude that it cannot be said that the commission's findings are without foundation in the evidence. In any controversy worthy of the name, there are contentions for both points of view. But we are not, on review of the commission's order, a fact-finding tribunal. (Commerce Com. v. New York Central Railroad Co. 398 Ill. 11; Brotherhood of Railroad Trainmen v. Elgin, Joliet and Eastern Railway Co. 374 Ill. 60; Moline Consumers' Co. v. Commerce Com. ex rel. Chicago, Burlington and Quincy Railroad Co. 353 Ill. 119.) We find sufficient evidence in the record to sustain the Commerce ...

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