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Ill. School Bus Co. v. South Sub. Safeway Lines

MARCH 1, 1971.

ILLINOIS SCHOOL BUS COMPANY, INC., PLAINTIFF-APPELLEE,

v.

SOUTH SUBURBAN SAFEWAY LINES, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

This record presents an interlocutory appeal by defendant, South Suburban Safeway Lines, Inc., from a temporary injunction obtained by plaintiff, Illinois School Bus Co., Inc. The order for temporary injunction was entered upon notice without the filing of answer or other pleading by defendant. It is, therefore, necessary to summarize the allegations of plaintiff's complaint.

• 1, 2 We will digress momentarily to note that the excerpts of record presented as a basis for this appeal are fragmentary and do not contain the entire complaint or even the injunctional order appealed from. It is difficult to believe that counsel appearing in this court are unaware of the well-established and time-honored principles that the abstract, or excerpts, constitutes the pleading of the appellant and that either of these vehicles for the appeal should contain all matters which this court will require for full and proper consideration of the issues. (Davis v. Davis, 128 Ill. App.2d 427; Nawoski v. Pallotto, 63 Ill. App.2d 50, 55; Flannery v. Allyn, 47 Ill. App.2d 308, 320 and Galvin v. Torres, 8 Ill. App.2d 227, 235.) A reviewing court is not required to search the entire record in considering an appeal. However, we will overlook this deficiency and proceed with a statement of the issues as presented by the verified complaint.

It is alleged that plaintiff is engaged in the transportation of school children by school bus. Defendant is a public utility engaged in transporting passengers for hire upon scheduled routes. Plaintiff has performed these services under annual contracts with various school districts throughout Cook County. Defendant now seeks to secure contracts with school districts for transportation of pupils.

The complaint sets forth various portions of the pertinent statutes. Among the matters referred to are the definitions of "school bus" in the Illinois Vehicle Code (ch. 95 1/2, par. 1-182); and in the School Code of Illinois (ch. 122, par. 29-7) and also the definition of "public utility", (ch. 111 2/3, par. 10.3).

The complaint also sets forth certain requirements of the Illinois Vehicle Code pertaining to the operation of school buses as therein defined such as visible signs at the front and rear of the vehicle with letters not less than eight inches high bearing the designation "school bus"; flashing red lights; other vehicles to be stopped when approaching a stopped school bus from either direction and other similar provisions. The complaint also quotes the applicable requirements of the Illinois School Code for capacity of school buses and for the exclusive use of a yellow color for these vehicles.

The complaint also recites the portion of the Illinois School Code giving the Superintendent of Public Instruction the power and duty of promulgating administrative regulations for operation of school buses as defined by the statute (ch. 122, par. 2-3.6). The complaint sets forth various requirements adopted by the Superintendent; including, for example, the directive that drivers of school buses obtain an annual health certificate evidencing their freedom from communicable tuberculosis, as contained in the publication issued by the Superintendent under the title, "Illinois School Bus Transportation".

It is also alleged that the Blue Island Community High School District No. 218, and the Bremen High School District No. 228, received bids from both plaintiff and defendant for performance of transportation services for their pupils under an annual contract and that these Districts "have taken the bid from defendant under consideration in preference to a bid submitted by the plaintiff on the basis that defendant's bid was lower when in truth and in fact said bid by defendant was higher than plaintiff's bid". The complaint then states, upon information and belief, that, if the school districts in question entered into a contract with defendant, said defendant will consider itself exempt from the regulatory requirements of the Illinois School Code and the regulations of the Superintendent of Public Instruction promulgated thereunder and will violate both.

The complaint then states certain conclusions to the effect that "an actual controversy exists" between the parties hereto concerning "the construction and validity" of the statutes above described and states certain legal arguments or conclusions concerning the effect of the statutes in question. The complaint also alleges that "plaintiff fears" that, unless the court grants an immediate injunction restraining the defendant from entering into any such contract, "plaintiff will suffer great and irreparable damage"; and, further, that "plaintiff has no adequate remedy by action at law for damages". The complaint prays a declaratory judgment but fails to describe the declaration which plaintiff requests. It also prays that defendant be enjoined from entering into any contract for transportation of school children until resolution of the controversy between the parties and until the "validity" of the three pertinent statutes had been judicially determined.

Pursuant to notice, the court heard testimony upon plaintiff's motion for temporary injunction based upon the complaint. No responsive pleading was filed by defendant. The complaint was amended on plaintiff's motion by modifying the prayer for relief to a request that defendant be "enjoined from transporting school children exclusively unless and until the defendant complies with all revised statutes and all rules and regulations of the Superintendent of Public Instruction of the State of Illinois pertaining to school buses and school bus drivers".

After hearing argument of counsel, the court entered an order for a temporary injunction restraining defendant "from transporting school children exclusively unless and until defendant complies with all Illinois Revised Statutes and all rules and regulations of the Superintendent of Public Instruction of the State of Illinois pertaining to school buses and school bus drivers". The order provides that plaintiff file bond in the sum of $200.00 and that defendant be "granted leave to appeal" upon filing appeal bond in the amount of $200.00. (Note Supreme Court Rule No. 307, Interlocutory Appeals as of Right).

After the appeal had been docketed in this court, an order was entered which stayed the effect of the temporary injunctional order appealed from (Supreme Court Rule 305). In addition, this court granted permission to the Boards of Education of Bremen Community High School District 228, Chicago Heights Grade School District 170 and Park Forest Grade School District 163 to file a brief and argument as amici curiae. Bremen Community High School District 228 is mentioned in the complaint as having received bids from both plaintiff and defendant for performance of transportation services.

It should also be noted that plaintiff in its brief made the statement that, after filing of this suit, the Board of Education of this District No. 228 entered into a contract with plaintiff for transportation of pupils. On oral argument, all counsel agreed that this statement is correct. However, we have given consideration to the brief and argument filed by amici as well as permitting oral argument by their counsel of record.

• 3 We note also the motion of plaintiff to dismiss the appeal on the ground that defendant failed to file an appeal bond as provided in the order appealed from. This motion, filed October 7, 1970, was taken with the case. Filing of an appeal bond in the trial court has not been jurisdictional in perfecting an interlocutory appeal since January 1, 1964. Rule 307 of the Supreme Court, effective that date, provides for interlocutory appeal as a matter of right from an order granting an injunction. The rule provides that the interlocutory appeal is perfected by filing a notice of ...


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