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Eagle Bus Lines, Inc. v. Commerce Com.

OPINION FILED MAY 24, 1954.

EAGLE BUS LINES, INC., APPELLANT,

v.

ILLINOIS COMMERCE COMMISSION ET AL., APPELLEES.



APPEAL from the Superior Court of Cook County; the Hon. JAMES J. McDERMOTT, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Eagle Bus Lines, Inc., plaintiff-appellant and hereinafter called Eagle, brings this appeal from an order of the superior court of Cook County affirming certain orders of the Illinois Commerce Commission entered on January 25, 1951, and on February 6, 1951, granting a certificate of public convenience and necessity to Sheridan Plaza Bus Lines, Inc., to operate motorbuses carrying passengers from specified points in the city of Chicago to the various race tracks in the Chicago area. These orders affirmed a previous commission order of June 16, 1948, authorizing the issuance of a certificate of public convenience and necessity to Sheridan Plaza Bus Lines, Inc., hereinafter referred to as Plaza, except that Lincoln Fields track was excepted and outbound and inbound pickup or discharge service was forbidden north and west of Howard and Paulina streets in Chicago. The appeal comes here directly by virtue of statutory provision. Ill. Rev. Stat. 1953, chap. 111 2/3, par. 73.

These proceedings originated with the filing on July 29, 1947, by Plaza, of a petition for a certificate of convenience and necessity to operate buses between designated points in the city of Chicago and the race tracks in the Chicago area. On July 16, 1946, Plaza had filed an earlier petition which was dismissed without prejudice. In the meantime, Eagle had filed a petition and had, on May 1, 1947, received its certificate.

Upon the filing of this petition by Plaza, seventeen respondents were made parties to the proceedings since they were carriers already rendering transportation service between two or more of the points sought to be served, or had applications pending before the commission for authority to serve two or more of said points. Several of these respondents were bus companies, including Eagle, and the remainder were railroads. A hearing was had whereat only Eagle opposed the application. Eagle opposed on the ground that adequate transportation was being furnished to the race tracks, that Eagle was the first in the field, that Plaza's proposed service would be directly competitive with Eagle, that public convenience and necessity did not require the proposed service, but if the commission found such service to be required then Eagle was ready, willing and able to serve the public need. The certificate was granted to Plaza on July 16, 1948. Eagle then filed a petition for rehearing and a motion to vacate the order. Only the petition for rehearing was allowed. Additional hearings were had culminating in the orders here on appeal. Eagle first appealed to the superior court of Cook County which affirmed the commission's orders. It is from the judgment of that court that Eagle now appeals.

It is first urged by Eagle that the order of the commission granting the certificate of convenience and necessity to Plaza is invalid for the reason that it did not contain findings to the effect that services rendered by Eagle were inadequate or unsatisfactory, or that Eagle was given an opportunity to render adequate service and failed or was unable to do so. Eagle contends that it was the existing and first carrier in the field. In reliance on this court's decision in Egyptian Transportation System, Inc. v. Louisville and Nashville Railroad Co. 321 Ill. 580, Eagle maintains that before the commission can grant a certificate of convenience and necessity to one carrier, where another is in the field, it must appear that the existing utility is not rendering adequate service, the existing utility should be permitted to show that it can furnish the needed service, and the commission must find that the existing carrier has failed or is unable to provide the additional service. This is the proper rule to be applied in the case of a utility which is first in the field, but it must be proved that such an existing carrier does actually enjoy such priority. (Chicago, Rock Island and Pacific Railroad Co. v. Commerce Com. 414 Ill. 134; Chicago Motor Bus Co. v. Chicago Stage Co. 287 Ill. 320.) This rule protecting the pioneer in the field is based on a consideration of the time and money expended by the pioneer in developing its business and rendering adequate service to the public, (Chicago Bus Co. case) and the pioneer utility having taken the "bitter with the sweet" throughout the years of development of the utility business in the area. Chicago, Rock Island and Pacific Railroad Co. v. Commerce Com. 414 Ill. 134.

This record does not indicate that Eagle is the pioneer utility in the field, nor that it is the sole and existing carrier. Quite the contrary is evidenced thereby. Eagle originators first began operations in the business of transporting the public from points in Chicago to the race track in 1932. The operation now known as Plaza began transporting the public to these same race tracks by motorbus in 1925. Plaza thus entered the field long before Eagle. It is true that Eagle received its certificate of convenience and necessity prior to the granting of Plaza's certificate. Mere priority in time of application will not of itself govern the granting of a certificate (Chicago Bus Co. case) and does not determine who is the pioneer in the field. A public utility is any business that may own, control, operate or manage, directly or indirectly for public use, any plant, equipment or property used or to be used for or in connection with the transportation of persons or property or any enterprise so closely and intimately related to the public, or to any substantial part of a community, as to make the welfare of the public, or a substantial part thereof, dependent upon the proper conduct of such business. (Highland Dairy Farms Co. v. Helvetia Milk Condensing Co. 308 Ill. 294.) It is thus seen that the business need not be incorporated, or even presently regulated by the Commerce Commission to be in fact a public utility. Moreover, these two carriers do not constitute the only carriers in the field. For many years, ten other utilities have supplied the public with transportation facilities to the race tracks in the Chicago area, any or all of which may have preceded both Plaza and Eagle in the field.

We have also shown above that one of the requirements for the application of the doctrine protecting the pioneer in the field is the need to protect a substantial investment made by a pioneer utility in developing the business. Without such investment, there is little reason to protect the pioneer from a competitive enterprise. Up to the time of the original hearings in this cause Eagle owned no buses, employed no permanent drivers, neither owned nor operated garages or repair shops, nor maintained nor owned terminals or bus stops. All of its personnel, mechanical and equipment requirements were supplied under a leasing arrangement with Central West Motor Stages, Inc. Central West Motor Stages is wholly owned by the same persons who own Eagle but it has business other than providing for the needs of Eagle. It is readily seen that Eagle has no substantial investment in the development of its business which requires the protection afforded a pioneer in the field.

Eagle was not the first in the field, nor has it made a substantial investment in the initial development of its business. It is in no position to claim the benefits of a rule applicable to protect pioneer utilities. Consequently it was unnecessary for the commission to find that the service rendered by Eagle was inadequate or unsatisfactory, to give Eagle an opportunity to supply the needed or corrected service, or to find that Eagle had failed or was unable to provide the additional service.

Both Plaza and Eagle are existing carriers and one has no greater right than the other. (Illinois Highway Transportation Co. v. Commerce Com. 404 Ill. 610.) The Public Utilities Act discloses the legislature's intention that a mere existence of a certificate shall not preclude the granting of a second certificate by its declaration that a certificate of convenience and necessity shall not be construed as granting a monopoly or exclusive privilege, immunity, or franchise. (Ill. Rev. Stat. 1953, chap. 111 2/3, par. 56.) The Commerce Commission has ample power to decide whether one or several companies engaged in furnishing public utility service shall operate in the same locality. People v. City of Chicago, 349 Ill. 304.

It is next contended by Eagle that the findings of the commission are not sufficient to support the order. Eagle claims that the commission's findings Nos. 2 and 3 indicate the weakness of Plaza's position. Finding No. 2 recites that the findings of notice under the Public Utilities Act and the rules of the commission were only substantially complied with. The sole failure of notice related to Plaza's failure to publish in Will County, where Lincoln Fields race track is located and to which Plaza proposed to operate its motorbuses. On January 25, 1951, the commission vacated its order of June 16, 1948, insofar as it authorized Plaza to operate to Lincoln Fields. Notice requirements in all areas in which other tracks are located were fully complied with. This specific failure of notice was noted in the commission's finding No. 26.

Finding No. 3 stated that no one was injured by Plaza's failure to comply with the rules of the commission and the commission should waive the requirements insofar as Plaza has not complied with them. Eagle contends that the commission fails to identify such violations rendering their gravity incapable of evaluation. The only violation evidenced by the record is that Plaza, after certification on June 16, 1948, moved its point of origin 3/4 of a block from Wilson and Sheridan to Sunnyside and Sheridan to avoid a serious traffic congestion at Wilson and Sheridan, without first obtaining the permission of the commission. That violation is noted in finding No. 22. Eagle was fully informed of such violation as it was present at all hearings. (Schwartz v. Commerce Com. 409 Ill. 182.) Neither Eagle nor any other party was injured by this minor violation. Moreover the commission may enforce or waive its rules as it deems necessary where no injury has been suffered by any party. Schwartz v. Commerce Com. 409 Ill. 182.

Eagle is in no position to urge this point for the reason that it moved its west side point of origin without the authority of the commission, ceased to operate its certified route from Howard and Hermitage in Chicago without commission consent, and failed to file required annual reports in 1947, 1948, and 1949, all in violation of commission rules or the Public Utilities Act.

Eagle attacks findings Nos. 12, 13, 14, and 15 as inadequate to support the requirement that Plaza, as an applicant for certification, be financially and mechanically able to furnish adequate, continuous and ...


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