Appeal from the Circuit Court of Sangamon county; the Hon.
DeWITT S. CROW, Judge, presiding. Reversed.
Rehearing denied September 12, 1961.
This is an action for declaratory judgment and an injunction involving the construction of certain provisions of the Illinois Motor Carrier of Property Act, effective January 1, 1954.
The complaint was filed February 5, 1958, alleging that the plaintiffs, except Farm To Market Truckers Association, are carriers of property by truck for compensation for the general public in intrastate commerce without regular routes or fixed termini; that they were issued certificates of public convenience and necessity as "local carriers" under Section 6 ("The Grandfather Clause") of the Illinois Truck Act, which became effective July 25, 1939; that they or their predecessors were so operating prior to July 25, 1939; that said Section 6 provides that every person operating as a carrier on the effective date thereof, shall file an application for a certificate of public convenience and necessity accompanied by proof of financial responsibility and compliance with safety requirements, and shall be granted a certificate without further proceedings; that said Act did not provide that certificates issued under the "Grandfather Clause" thereof limited local carriers to transportation of any class or classes of property; that the Department of Public Works and Buildings in administering said Act issued some certificates in which it was specified that the authority thereby granted was limited to the class or classes of property transported by the carrier on July 25, 1939; that the Department issued other certificates to local carriers which contained no limitation on the classes of property to be transported, but provided that such limitation applied only to those local carriers not qualifying under the "Grandfather Clause"; that because of this attempt to limit some local carriers, entitled to certificates under the grandfather clause, to the transportation of certain designated commodities, the General Assembly amended Section 8 of the Illinois Truck Act, effective July 16, 1941, by adding thereto the following:
"Nothing herein contained shall be deemed to restrict any applicant hereunder, under any certificate issued to him, to the transportation of only such class or classes of property as may have been transported by him prior to the effective date of this Act. (Chap 95 1/2 Sec 247, Ill Rev Stat)"
that subsequent to the effective date of the amendment of July 16, 1941, plaintiffs and other local carriers requested the Department to amend their certificates so that no limitation as to commodities that might be transported would be indicated thereon, but the Department advised them that this was unnecessary since the statute provided that no limitation applied to certificates issued under the "Grandfather Clause."
The complaint further alleges that effective January 1, 1954, the Illinois Truck Act was superseded by the Illinois Motor Carrier of Property Act (Chap 95 1/2, Sec 282, Ill. Rev Stat 1957), the administration and enforcement of said act being vested in the Illinois Commerce Commission, which act designated all persons transporting property over the highways of the state for the general public by motor vehicle for hire, whether over regular, or irregular routes, as common carriers; that Section 9 of the Illinois Motor Carrier of Property Act provides that every carrier operating under authority issued pursuant to the Illinois Truck Act as a local carrier shall file with the Illinois Commerce Commission an application for a certificate or permit and shall be granted a new certificate, authorizing such carrier to perform "the operation and service authorized pursuant to the provisions of the Illinois Truck Act"; that although said Act requires the defendants to grant plaintiffs a new certificate authorizing them to perform the same operation and service authorized pursuant to the provisions of the Illinois Truck Act, the defendants have refused to do so and have limited such certificates to authorize the transportation of only such class or classes of property as was specifically designated in the certificates previously issued by the Department of Public Works and Buildings; that although defendants have been advised of these facts they have refused to modify said certificates so as to conform to the authority held by plaintiffs pursuant to the Illinois Truck Act.
It is then alleged that the defendants have threatened plaintiffs with, and caused the arrest of some of them for transportation of property not specifically listed in their certificates; that such conduct upon the part of the defendants is resulting in irreparable damage to plaintiffs and in addition thereto prevents them from rendering the service to the public contemplated by the Legislature; that shippers, chiefly farmers and small merchants, in rural communities, where the services of plaintiffs and others similarly situated are indispensable, will be irreparably damaged if they cannot have any class of property they desire transported by motor vehicles for hire, since many of the communities are not on routes served by railroads, or trucking companies operating over fixed routes and with regular schedules; that defendants have refused to continue cases, when arrests have been made, pending the determination of the issue here presented, although plaintiffs have been permitted to haul commodities of every kind and class without arrests being made or threatened for many years.
The defendants filed a motion to dismiss the complaint under Section 48 of the Civil Practice Act, supported by affidavit, asserting in substance that plaintiffs have failed to exhaust their administrative remedies because none of them have made a complaint or filed a request under Section 9(b) of the Motor Carrier of Property Act seeking to have the certificates modified to conform to the authority to which they are entitled.
On March 18, 1958, the court denied this motion and granted plaintiffs application for an injunction as prayed in the complaint and temporarily enjoined defendants from arresting or prosecuting plaintiffs for transporting commodities not enumerated upon the certificates of convenience and necessity issued to them by the Illinois Commerce Commission. Upon the entry of the temporary injunction order, the defendants filed their answer alleging in substance the same matters recited in their motion to dismiss the complaint. Subsequently defendants moved to dissolve the temporary injunction relying principally on the ground that the pleadings show on their face that plaintiffs have not exhausted their administrative remedies. On denial of this motion, defendants appealed to this court where we affirmed the order of the trial court. (Farm to Market Truckers Association vs. Perrine, et al. 21 Ill. App.2d 118)
In passing upon said appeal, we pointed out that the ultimate issue involved in this case is the interpretation to be placed upon various provisions of the Illinois Motor Carrier of Property Act and of the preceding statute, the Illinois Truck Act, and that an action for a declaratory judgment is an appropriate proceeding in such a case and that the Act so provides. (Ill. Rev Stat 1957, Chap 110, Sec 57.1)
As to whether plaintiffs could maintain their action without resorting to an administrative proceeding, we held that determination as to whether plaintiffs had failed in that respect, must await the decision of the trial court construing and interpreting the provisions of the particular statutes involved. We expressed no opinion as to such ultimate issue. A trial on the merits resulted in the entry of a declaratory judgment order finding plaintiffs, as local carriers, to be entitled under the grandfather clause, Section 9(a) of the Illinois Motor Carrier of Property Act to carry all classes of commodities without limitation and making permanent the temporary injunction previously issued. Defendants' appeal from this judgment to the Supreme Court was held to have been wrongfully taken and resulted in the case being transferred to this court.
Defendants' contentions are that plaintiffs having failed to exhaust their administrative remedies, are precluded from maintaining an action, whether for declaratory judgment or injunctive relief; and that as a prerequisite to their right to seek redress in this action, plaintiffs were required to file a petition with the Commerce Commission, seeking to have their certificates corrected, modified or amended. Whether there is any merit in such contention depends upon the construction which is properly placed on Section 9 of the Motor Carrier of Property Act.
The material facts are not in dispute. The record shows that plaintiffs were issued certificates as local carriers under Section 6(b) (the Grandfather Clause) of the Illinois Truck Act, effective July 25, 1939, Chap 95 ...