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Iowa-illinois Gas & Electric Co. v. Fisher

OPINION FILED APRIL 20, 1953

IOWA-ILLINOIS GAS & ELECTRIC COMPANY, PLAINTIFF-APPELLEE,

v.

WALTER T. FISHER ET AL., CONSTITUTING THE ILLINOIS COMMERCE COMMISSION OF STATE OF ILLINOIS, AND IVAN A. ELLIOTT, ATTORNEY GENERAL OF STATE OF ILLINOIS, DEFENDANTS-APPELLANTS.



Interlocutory appeal from the Circuit Court of Rock Island county; the Hon. RAY I. KLINGBIEL, Judge, presiding. Heard in this court at the October term, 1952. Affirmed. Opinion filed April 20, 1953. Rehearing allowed May 6, 1953. New opinion filed July 15, 1953. Rehearing denied October 6, 1953. Released for publication October 6, 1953.

MR. JUSTICE WOLFE DELIVERED THE OPINION OF THE COURT.

Rehearing denied October 6, 1953

Rehearing allowed May 6, 1953

This is an appeal by the Illinois Commerce Commission, and the Attorney General from an order of the circuit court of Rock Island county, granting an injunction which restrained the Commission from enforcing a "temporary rate order" against the Iowa-Illinois Gas & Electric Company, a public utility furnishing natural gas and electricity to the Rock Island-Moline area in Illinois.

On April 10, 1952, the Commission entered a temporary order pursuant to section 36 of the Illinois Public Utilities Act (Ill. Rev. Stat., Ch. 111 2/3, par. 36 [1951; Jones Ill. Stats. Ann. 112.055]) directing the utility to effect a temporary reduction in its gas and electric rates to the Illinois public for a nine-month period beginning June 1, 1952. This temporary order resulted from an earlier review by the Commission of the utility's monthly and annual reports, wherefrom it appeared to the Commission that the utility's earnings were excessive. On August 7, 1951, the utility had been cited to appear before the Commission on September 25, 1951, to justify its rates, and to show whether such rates did not return to the utility a profit in excess of a just and reasonable return on its property values used and useful in rendering service to the public in the State. In response to this citation the utility appeared on the date set, before an examiner of the Commission, and successive continuances thereafter were granted at the utility's request for time to prepare its case resisting the rate reduction.

Between September 25, 1951, and March 6, 1952, the utility furnished the Commission, at the latter's request, with various property-cost data, income statements and balance sheets covering its operations, and the Commission directed its staff to investigate and study the same. Several hearings were held during this time, and the utility objected to any introduction into the record of the data theretofore furnished to the Commission as aforesaid. The utility did not produce any person to verify or lay any foundation for the admission of this data into evidence, whereupon it was advised by the Commission that whether or not such data was formally made a part of the record, it had nevertheless been submitted by the utility to the Commission and could form the basis for any action the Commission might properly take.

At the hearing on March 6, 1952, the utility offered no evidence and the Commission produced testimony by its chief of Finance & Accounts, as to facts ascertained from investigating the utility's data and records theretofore furnished. It was at this hearing that the eventual possibility of at least a temporary rate order being issued, was recognized by the utility. Following the direct testimony produced by the Commission, the utility again had the matter continued until March 25, 1952, to prepare and present its cross-examination, which was done and the cross-examination was completed on March 26, 1952. Thereupon the Commission advised for the record that it proposed to proceed under section 36 of the Act with a temporary order requiring the utility to reduce rates. The proceeding at that point indicates a stipulation between the parties that this constituted statutory notice to the utility of the Commission's intention so to proceed. Another continuance was then granted the utility to present evidence against any order under section 36, which evidence was introduced on March 31, April 1 and April 2, 1952, after which the matter was again continued for further hearing on April 15, 1952.

On April 10, 1952, the Commission entered its temporary rate order hereinbefore referred to, and on April 18, 1952, the utility filed in the Rock Island circuit court a complaint for injunction restraining enforcement of the same. On the same day, i.e., April 18th, the utility filed with the Commission an application for rehearing, apparently under section 65 of the Public Utilities Act [Ill. Rev. Stats. 1951, ch. 111 2/3, § 69; Jones Ill. Stats. Ann. 112.090], to urge objections to the rate order; and on May 12, 1952, it filed an application for rehearing as provided by the Act [Ill. Rev. Stats. 1951, ch. 111 2/3, § 71; Jones Ill. Stats. Ann. 112.092]. Both of these applications were denied by the Commission on May 27, 1952.

On May 29, 1952, the circuit court issued, on the utility's own bond without other sureties, the injunction order from which the Commission here appeals.

After summons was served upon the defendants they appeared specially in the circuit court of Rock Island county and entered a motion for a change of venue, their reason being that the circuit court of Rock Island did not have jurisdiction of the defendants and they moved the case be transferred, either to Cook or Sangamon county, the place where the Commerce Commission had its offices. This motion was overruled, then the defendants filed an answer claiming the same rights as they had formerly done in their motion for a change of venue.

It is now insisted that the circuit court erred in overruling a motion for a change of venue. Section 131 of Chapter 110 of Smith-Hurd Annotated Statute, the Civil Practice Act [1951; Jones Ill. Stats. Ann. 104.007], under the title of "Venue" provides as follows: "Except as otherwise provided in this Act, every civil action shall be commenced in the county where one or more defendants reside or in which the transaction or some part thereof occurred out of which the cause of action arose, . . ." [Italics added.] So far as we have been advised or able to ascertain, this exact question concerning venue has never been presented to our Supreme or Appellate Courts, but other state courts with similar statutes have passed upon the question. The question is, did any of the transactions involved in this suit take place in Rock Island county?

In the case of Montana-Dakota Utilities Co. v. Public Service Commission of Montana [111 Mont. 78], decided by the Supreme Court of Montana, and reported in 107 Pacific, second series at page 533. Practically the same facts arose in that case as the one we are now considering. In passing upon the merits of the case, the court uses this language: "Under this section our province is to determine in what county or counties the cause of action or some part thereof arose. On behalf of plaintiff it is contended that since the order complained of was made in. Lewis and Clark county, where the office of the commission is located, at least a part of the cause arose in that county. We think this contention loses sight of the real cause of the action. The cause of the action is the threatened enforcement or operation of the order in Valley and Phillips counties. It is not the mere making of the order, but the place where it is put in operation, that determines where the cause of action arose. Operation of the order is what is alleged will injure plaintiff. Section 3906, as amended by Chapter 56, Laws of 1937, provides that the orders `shall become operative' within twenty days after their filing. It is the operation of the order that the action seeks to enjoin. True, the complaint also seeks to set aside the order, but only because its operation allegedly would injure plaintiff by confiscating its property. The operation of the order will be accomplished, if at all, in Valley and Phillips counties where the order is made applicable. It is our view that the cause of action arose in Valley and Phillips counties and not in Lewis and Clark county."

In the case of Cecil v. Superior Court in and For Los Angeles County [59 Cal.App. (2d) 793], a California case reported in 140 Pacific, second series page 125, the court after reviewing many cases cited for both the appellant and the appellee in the case concludes with this language: "The reasoning of these cases is sound and the conclusion is acceptable, in view of the fact that there has been no contrary holding in California. There is no escape from the conclusion that where a citizen is singled out by a state agency and proceedings are instituted against him and result in an order, the effect of which is to deprive him absolutely or conditionally of the right to do business, the proper county for redress under section 393, subd. (b), of the Code of Civil Procedure is the county in which he carries on the business and in which he will be hurt by enforcement of the order. It is where the shaft strikes him, not where it is drawn, that counts. Process for the seizure of property operates when and where it is executed. Surely a cause of action does not arise in the county in which a state officer happens to affix his name to an order which is to become operative in another county."

There is no doubt that the Utilities Company is doing business in Rock Island, and the order issued by the Commerce Commission would take effect in that county. It is our opinion that part of the transaction in the present case, out of which the cause of action arose, occurred in Rock Island ...


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