Appeal from the Superior Court of Cook County; the Hon. DONALD
S. McKINLAY, Judge, presiding. Reversed and remanded with
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
This action was filed by the People of the State of Illinois ex rel. Illinois Commerce Commission, under §§ 75 and 76 of the Public Utilities Act of Illinois (Ill Rev Stats 1961, c 111 2/3) to restrain defendant from operating a bus service for the transportation for hire of high school students to and from designated high schools within Cook County, without defendant first obtaining authority from the Illinois Commerce Commission. The matter was submitted to the court upon the agreed facts that appear from the pleadings and from the deposition of Gerald J. Galvin, the operator of the busses. The Superior Court dismissed the petition for Writ of Injunction and denied plaintiff's motion for summary judgment and plaintiff appeals. Plaintiff appealed directly to the Supreme Court which transferred the case to this court.
The defendant, Gerald J. Galvin, doing business as Jerry's Bus Service, owns and operates five motor busses and for four years has provided daily transportation for students to and from six different high schools. The marking on the busses reads either "Jerry's Bus Service" or "School Bus." Each of the busses travels a fixed route, from its starting point to at least one of the designated high schools and later returns along the same route which is a distance of from two to four miles. Students on street corners "flag" the bus and pay either a fixed cash fare or use a token or a twenty-ride pass. The defendant has no prior agreement of any kind with any of the students or their parents for this transportation.
The defendant had never applied for nor obtained from the Illinois Commerce Commission any authority to operate such bus service. The only question presented for our determination is whether the Superior Court should have found defendant to be a "public utility" within the meaning of § 10.3 of the Public Utilities Act of Illinois (Ill Rev Stats 1961, c 111 2/3, § 10.3) which would require him to obtain a Certificate of Public Convenience and Necessity from the Illinois Commerce Commission.
Plaintiff contends that upon the agreed facts, the trial court should have found the defendant to be a "public utility" within the meaning of § 10.3.
A public utility is defined under § 10.3 as follows:
"Public Utility means and includes every . . . firm, partnership or individual . . . that now or hereafter:
(a) May own, control, operate or manage, within the State, directly or indirectly, for public use, any . . . equipment or property used or to be used for or in connection with the transportation of persons or property . . . between points within this State."
The defendant contends that he is a private carrier solely for the benefit of high school students and not for the benefit of the public and therefore his business is not a public utility within the meaning of § 10.3. He further contends that his operations do not come within the jurisdiction of the Illinois Commerce Commission as stated in the Public Utilities Act (Ill Rev Stats 1961, c 111 2/3, § 57), because he does not indiscriminately accept and discharge passengers as may offer themselves for transportation.
Whether, on the facts admitted, defendant is a "public utility" depends upon whether the defendant operates his busses "for public use." In State Public Utilities Commission v. Noble Mut. Tel. Co., 268 Ill. 411, 109 N.E. 298, the defendant company consisted of a group of customers who were dissatisfied with the authorized utilities service and formed a mutual telephone company on a nonprofit basis, but rendered service to its members at cost. They did not offer the services of the corporation to anyone other than corporate members. The Supreme Court in affirming the trial court's decision that the defendant was a public utility under the statute, stated that the mere fact that the defendant company was not operated for profit did not determine that it was not a public utility. The Court went on to say on page 415:
"[i]t is not necessary, in order to constitute this a public use, that this service should be extended to the whole world or to include whoever might happen to be temporarily in the Village of Noble or in that vicinity. A public use means public usefulness, utility, advantage or benefit. To be public the use must concern a community as distinguished from an individual or any particular number of individuals, but it is not essential that the entire community or people of the State, or any political subdivision thereof, should be benefited or assured in the use or enjoyment thereof. The use may be local or limited. It may be confined to a particular district and still be public." (Emphasis ours.)
The Appellate Court has in various decisions laid down criteria to be used in the characterization of a bus service as either "public" or "private." In South Suburban Motor Coach Co. v. Levin, 269 Ill. App. 323 the court ruled that the operations of a bus company which transported passengers to and from dog races constituted a public use. The controlling factor in that case was that the defendant offered his services to the public "without any particular discrimination," in that he accepted his passengers off the streets without any prior contractual arrangements.
In Illinois Highway Transp. Co. v. Hantel, 323 Ill. App. 364, 55 N.E.2d 710 the court was presented with the situation where during the wartime gas rationing era, factory workers from one factory made specific contractual arrangements for bus transportation between their homes and their common factory destination. No persons other than the employees of Caterpillar Tractor were ever carried on the two busses used and the busses bore the marking, "Caterpillar Workers Only." The court held that the defendants' activities in the transportation of individual employees of one factory with whom specific arrangements had been made did not render them subject to the jurisdiction of the Commerce Commission as a public utility.
We think, however, that the case of Jacksonville Bus Line Co. v. Watson, 344 Ill. App. 175, 100 N.E.2d 391 is controlling on the issues at bar. In that case the evidence showed that the defendant bus company transported to different named factories any individuals who got onto their busses and paid the required fares. There were no prior arrangements between the bus company and the passengers as to the frequency and periodicity of ...