Appeal by defendant from the Superior Court of Cook county;
the Hon. FRANK M. PADDEN, Judge, presiding. Heard in the third
division of this court for the first district at the February
term, 1954. Order reversed. Opinion filed June 9, 1954. Rehearing
denied July 2, 1954. Released for publication July 2, 1954.
MR. JUSTICE KILEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 2, 1954.
This is an appeal by defendant Company from an interlocutory order granting plaintiffs a temporary injunction restraining the Company from distributing proceeds of a condemnation award and of a sale of equipment.
Defendant operates an electric railroad between Forest Park, Illinois and the plaintiff cities and villages to the West. Until about September 15, 1953 its services extended to the Chicago Loop. About 90% of its service was transportation of passengers between Chicago and the cities and villages mentioned, and others farther west. From its Wells Street terminal in Chicago it operated over the elevated and surface tracks of the Chicago Transit Authority, and its predecessors, to Laramie Avenue. West of Laramie to its western terminal, defendant operated over its own right of way.
Plaintiffs are an unincorporated Association and the cities, villages and unincorporated communities in Du Page county, served by the Company.
Early in January 1954 the Company was awarded more than two million dollars for property taken by the City of Chicago, Cook county and the State of Illinois in aid of the Congress Street Highway development. In addition, the Company sold one million dollars of its fixed transportation facilities to the Chicago Transit Authority, also in aid of the development. January 15, 1954 the Company directors called a stockholders' meeting for February 16th to consider distributing the moneys in accordance with a previous resolution.
On February 2, 1954 plaintiffs filed a petition before the Illinois Commerce Commission seeking, among other things, (a) to stay any distribution of the proceeds; and (b) immediate initiation by the Commission of an injunction proceeding to restrain the Company from distributing the proceeds in violation of § 27a of the Public Utilities Act. (Ch. 111 2/3, par. 27a, Ill. Rev. Stats. (1953) [Jones Ill. Stats. Ann. 112.046]). The Commission set a hearing on the petition for March 9, 1954.
On February 8th plaintiffs filed this action to maintain the status quo until the Commission made its decision on the petition. The next day it moved for the injunction. The Company filed a verified answer and moved to strike the motion for temporary injunction. On these pleadings and without evidence, the order appealed from was entered, restraining distribution until the further order of the court.
The C.T.A. right of way lies generally along the Congress Street Highway route. After the right of way was taken in condemnation, the elevated structure thereon was taken down between Racine Avenue and Sacramento Boulevard. Thereafter the rail traffic between those points was rerouted over the surface of Van Buren Street. Subsequently, for reasons arising from the rerouting, the Commission on July 29, 1953 "temporarily authorized" defendant to suspend its operations between the Chicago terminal and Des Plaines Avenue, Forest Park, Illinois. Plaintiffs appealed from that order and the appeal is pending in the circuit court of Du Page county.
Plaintiffs allege their dependency upon defendant's transportation service; the adverse affect of discontinuance or impairment of service upon them; the temporary nature of the Commission order suspending service; the availability for resumption of Company service to Chicago, in the Highway development; and the public interest in the Company's financial potential to resume service should it be ordered to do so. They allege on information and belief the probable cost of resuming service and the present strained financial condition of the Company. They allege that the proceeds, subject of suit, are the only capital available to prepare to resume service and that, if distributed, defendant will be unable to comply with a resumption order should one be entered; the threatened violation of § 27a; and that, unless the distribution is enjoined, they will be irreparably damaged. The grounds alleged in the petition before the Commission and in the complaint are substantially the same.
Defendant's pleadings attacked the jurisdiction of the court, the substance of the complaint and the authority of the affiant in the verification and of plaintiffs' attorneys. The issues raised here are based on those points. The principal question is whether the chancellor entered an order beyond the jurisdiction of a court of equity and thereby abused his discretion.
The injunction rests on the theory that the Commission's delay in exercising its power to stop the dividend gave rise to the chancellor's power to preserve the status quo until that power was exercised, lest the alleged violation of § 27a render defendant incapable of rendering future service which is likely to be demanded of it. Defendant contends that the Commission's power is exclusive under the circumstances of this case.
Plaintiffs' petition before the Commission was filed under § 64 of the Public Utilities Act (ch. 111 2/3, par. 68, Ill. Rev. Stats. (1953) [Jones Ill. Stats. Ann. 112.089]), under which complaint may be made by "any person . . . chamber of commerce . . . body politic . . . municipal corporation . . . setting forth any act . . . done or omitted to be done in violation, or claimed to be in violation, of any provision of this Act. . . . No complaint shall be dismissed because of the absence of direct damage to the complainant." Within thirty days after service of any order or decision any person may apply for rehearing and "no appeal shall be allowed from any . . . order or decision . . . unless and until an application for rehearing . . . shall first have been filed with and acted upon by the Commission." (§ 67, par. 71 [Ill. Rev. Stats. 1953, ch. 111 2/3; Jones Ill. Stats. Ann. 112.092]).
Within thirty days after denial of rehearing or after "final" order or decision upon rehearing "any person . . . affected . . . may appeal to the circuit or superior court. . . . No proceeding to contest any . . . decision or order . . . which . . . is authorized to issue without a hearing . . . shall be brought in any court unless application shall have been first made . . . for a hearing thereon and until after such application has been acted upon. . . . order or decision of the Commission shall not be set aside unless it clearly appears that the finding . . . was against the manifest weight of the evidence . . . or . . . without the jurisdiction of the Commission. . . . orders or decisions of the Commission shall be held to be prima facie reasonable, and the burden of proof . . . shall be upon the person . . . appealing . . . (§ 68, par. 72 [Ill. Rev. Stats. 1953, ch. 111 2/3; Jones Ill. Stats. Ann. 112.093]). . . . during the pendency of such appeal . . . the . . . court . . . in its discretion may stay or suspend . . . the operation of the . . . order or decision . . ." upon ...