Appeal from the Circuit Court of DeWitt county; the Hon. BIRCH
E. MORGAN, Judge, presiding. Reversed.
JUDGE ROETH DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 25, 1960.
The parties to this suit are common carriers each operating a bus line under certificates of convenience and necessity issued by the Illinois Commerce Commission. In 1942 proceedings were commenced before the Commission regarding the right of the parties to operate along a given route and these proceedings were not concluded until the Supreme Court rendered its decision favorable to defendant, Illinois Highway Transportation Company. Black Hawk Motor Transit Co. v. Illinois Commerce Commission, 398 Ill. 542, 76 N.E.2d 478. The case at bar is an outgrowth of that litigation and involves the following facts.
On June 28, 1945, after a previous hearing, the Commission rescinded the certificate which it had previously granted defendant to operate a bus line over a prescribed route and granted a certificate to plaintiff over the same route. Defendant perfected its appeal to the Circuit Court of DeWitt County and immediately moved to stay the order of the Commission rescinding its certificate and the order of the Commission granting to plaintiff its certificate. A hearing was had upon the motions and the Circuit Court stayed the order rescinding the certificate of defendant but denied the motion to stay the order granting plaintiff's certificate. In December of 1945 the Circuit Court heard the case on the merits and sustained the order of the Commission. Defendant then ceased to operate along the route while plaintiff continued in its operation along said route.
Appeal was perfected to the Supreme Court but no further effort was made to stay the order of the Commission. While this appeal was pending plaintiff filed this suit in the Circuit Court of DeWitt County claiming damages for the alleged illegal operation by defendant from the date the Commission order became final, to wit, August 16, 1945, to December 13, 1945, the date that defendant ceased operations. In 1948 the Supreme Court ruled in favor of defendant and voided the orders of the Commission rescinding defendant's certificate and granting plaintiff's certificate over the route in question. In January, 1948, following the decision of the Supreme Court, defendant filed its counterclaim seeking to recover revenues received by plaintiff from the date the Commission order became final, i.e., August 16, 1945, to the date of the Supreme Court mandate, i.e., January 23, 1948. The suit was filed in 1946 but it was not until 1952 that the pleadings were settled. The record does not explain the long delay in settling the pleadings. In any event the action was again permitted to lie dormant until the Circuit Court on its own motion set the case for hearing in 1957. Further motions followed and the case was finally tried in 1958 on the complaint and counterclaim.
The complaint and counterclaim in this cause allege substantially the same thing, i.e., the illegal operation by the other party over the route in question, with plaintiff's claim covering only that period of time from the date the Commission order became final to December of 1945, and defendant's counterclaim alleging damages for a period of time commencing with the finality of the Commission order and terminating in 1948 when the plaintiff ceased operation pursuant to the mandate of the Supreme Court in Black Hawk Motor Transit Co. v. Illinois Commerce Commission, supra. The claim of both parties is based on restitution. The Circuit Court granted judgment to the defendant on its counterclaim in an amount equal to the total receipts of the plaintiff for that period of time from August 16, 1945, to December 13, 1945. The appeal is from the order granting judgment to defendant, plaintiff waiving any appeal from the adverse judgment on its complaint and defendant waiving any appeal from the adverse judgment on the counterclaim covering that period of time after December, 1945.
Thus it appears that each party operated over the route in question by authority of a certificate granted by the Commission from August 16, 1945, to December 13, 1945. Defendant ceased operation on the latter date but plaintiff continued operations until January 23, 1948. On that date, i.e., January 23, 1948, plaintiff ceased operation pursuant to the mandate of the Supreme Court and defendant resumed operation. As heretofore noted, plaintiff's complaint is for loss of revenues from August 16, 1945, to December 13, 1945, and defendant's counterclaim is for loss of revenues from August 16, 1945, to January 23, 1948. Judgment was rendered in defendant's favor for the total revenues received by plaintiff from August 16, 1945, to December 13, 1945.
The question involved is one of first impression in this state. No authority has been cited covering this exact point and none has been found.
Several points have been raised by plaintiff and defendant. However, in our view the question can be reduced to the single issue of whether a suit for damages by way of restitution can be maintained by one carrier against another who is operating along the same route, pursuant to a certificate and order of the Illinois Commerce Commission that was subsequently voided by the Supreme Court.
We believe that Sections 49-a, 67, 71 and 76 of the Public Utilities Act (Chap. 111 2/3, par. 49-a, 71, 75, and 80, Ill. Rev. Stat.) are material in this case. They provide insofar as this case is concerned as follows:
Section 49-a. "No public utility shall abandon or discontinue any service without first having secured the appoval of the Commission . . ."
Section 67. ". . . An application for rehearing shall not excuse any corporation or person from complying with and obeying any rule, regulation, order or decision or any requirement of any rule, regulation, order or decision of the Commission theretofore made, or operate in any manner to stay or postpone the enforcement thereof, except in such cases and upon such terms as the Commission may by order direct . . ."
Section 71. "The pendency of an appeal shall not of itself stay or suspend the operation of the rule, regulation, order or decision of the Commission but during the pendency of such appeal the circuit or superior court, or the Supreme Court, as the case may be, in its discretion may stay or suspend, in whole or in part, the operation of the Commission's rule, regulation, order or decision.
"No order so staying or suspending . . . an order . . . of the Commission shall be made by the Court otherwise than upon three days' notice to the Commission and after a hearing, and if . . . the order . . . of the Commission is suspended, the order suspending the same shall contain a specific finding based upon evidence submitted to the Court, and identified by reference thereto, that great or ...