Appeal from the Circuit Court of Cook County; the Hon. GEORGE
N. LEIGHTON, Judge, presiding. Reversed and remanded with
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
On February 4, 1969, the plaintiff, Chicago and North Western Railway Company (hereafter referred to as the Railroad), filed a complaint seeking injunctive relief and a declaration that section 27(c) of the Public Utilities Act (Ill Rev Stats 1969, c 111 2/3, § 27(c)) does not confer jurisdiction on the Illinois Commerce Commission to control the Railroad's sale, transfer, lease, mortgage, or other disposition of real estate in Illinois if such disposition was neither necessary nor useful to the public. The Railroad also sought to restrain the defendants from enforcing section 27 of the Act. *fn1
The Attorney General filed a motion to dismiss the Complaint and the Railroad then made a motion for summary judgment. The Circuit Court denied the Attorney General's motion to dismiss and granted the Railroad's motion for summary decree. The court found that section 27 of the Act did not apply to real estate and provided no standards; therefore, was in violation of Article 3 of the Constitution of the State of Illinois. The defendants were enjoined from enforcing or attempting to enforce section 27 of the Act.
On June 30, 1969, the defendants filed a notice of appeal to the Supreme Court of Illinois, and on January 21, 1970, the Supreme Court transferred the case to the Appellate Court of Illinois on the ground that it had no jurisdiction on direct appeal. The basis of the direct appeal was that the case involved questions arising under the Constitutions of the United States and of the State of Illinois. (Supreme Court Rule 302(a) (2).)
The first question to be decided in this court is the import of the order of transfer as it concerns the constitutional issues raised by the litigants. In Sarelas v. Illinois Bell Tel. Co., 42 Ill. App.2d 372, 192 N.E.2d 451, the plaintiff filed a direct appeal to the Illinois Supreme Court. The case was transferred to the Appellate Court, and in its opinion this court said at page 374:
"In his brief filed there he set forth eight separate grounds involving constitutional questions. The cause was transferred without opinion by the Supreme Court, but implicit in its transfer order is a rejection of plaintiff's constitutional arguments and a holding that there are no debatable constitutional questions involved in the case."
The Sarelas case was cited in Barnes v. Peoples Gas Light & Coke Co., 103 Ill. App.2d 425, 243 N.E.2d 855, where the court said at 427:
"The appeal was taken to the Supreme Court which transferred it to this court without comment, thus disposing of a claim by plaintiff that the orders referred to had deprived him of constitutional rights because of his color."
After both Sarelas and Barnes had been transferred, the Appellate Court treated the issues as having been disposed of; consequently, in neither case was any further reference made to the alleged constitutional questions.
In People v. Valentine, 60 Ill. App.2d 339, 208 N.E.2d 595, this court noted at page 348 that the then existing rule was
". . . if a case in which constitutional questions were raised was transferred to this court, it was presumed that the Supreme Court had determined that the constitutional questions were not genuine or that the questions were not material to the disposition of the appeal. [Citing cases.] There now must be an extension of this rule because of the possible alternative presumption that the constitutional questions are deemed well settled by the prior decisions of the court."
We cannot hold that such a transfer is an adjudication by the Supreme Court on the merits of the constitutional issues.
In the instant case the Circuit Court accepted the plaintiff's view of the manner in which section 27 of the Public Utilities Act should be interpreted, and therefore entered judgment for the plaintiff. On the direct appeal to the Supreme Court, several constitutional issues are raised by the plaintiff regarding its assertions of the invalidity of the section under review, but the Railroad also urges its view of the proper ...