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Orrway Motor Service, Inc. v. Commerce Com.





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


Rehearing denied August 26, 1976.

Plaintiff, Orrway Motor Service, Inc., appeals from an order of the circuit court of Cook County affirming the decision and administrative order of the Illinois Commerce Commission which denied Orrway's petition to vacate the prior order revoking Orrway's certificate of public convenience and necessity as a motor common carrier. Plaintiff contends that the Commission and trial court erred in refusing plaintiff an opportunity to attempt to rebut the presumption that it had notice of the certificate revocation hearing.

We reverse and remand.

The record reveals the following pertinent facts. On May 5, 1972, the Illinois Commerce Commission mailed to Orrway a citation order to show cause, directing Orrway to appear on May 25 at a hearing to determine whether Orrway's certificate should be revoked for failure to comply with section 18-701 of the Illinois Vehicle Code, requiring motor carriers to have proof of insurance coverage on file with the Commission. (Ill. Rev. Stat. 1971, ch. 95 1/2, par. 18-701.) The citation order was posted by certified mail, with return receipt requested. On May 25, a hearing was held, but Orrway failed to appear. On June 7, the Commission revoked Orrway's certificate. A copy of the Commission's revocation order was mailed to Orrway on June 13, 1972.

On May 16, 1973, 11 months later, Orrway filed a petition with the Commission alleging that it never received either the citation order to show cause at the certificate revocation hearing or a copy of the revocation order. As pertains to the question of notice, the petition alleged that Orrway had changed its mailing address from a street number to a post office box, that some mail had been forwarded, and that it is common in its area of business that mail is misdelivered or lost. The petition requested that the Commission's order revoking Orrway's certificate be vacated and that the certificate be reinstated. The Commission denied the petition, finding that it was not timely filed and that the "grounds for vacation do not appear to be supported by the evidence in the file." Orrway's application for rehearing repeated that it never received notice, and requested a hearing on the matter to adduce evidence showing that it never received notice of the proceedings. The application for rehearing and an evidentiary hearing was denied by the Commission. Orrway filed a notice of appeal to the circuit court from the Commission's orders. The circuit court affirmed the Commission's orders, and this appeal follows.

Orrway's primary contention on appeal is that since it was never served with notice of the certificate revocation proceedings, the revocation order is void as being without statutory authority. The Commission argues that the revocation order was properly entered since notice was given to Orrway as required by law.

Notice of proceedings before the Illinois Commerce Commission pursuant to the Illinois Vehicle Code is governed by section 18-900 of the Code (Ill. Rev. Stat. 1971, ch. 95-1/2, par. 18-900) which adopts the notice requirements contained in "An Act concerning public utilities." Section 66 of "An Act concerning public utilities" provides for service of the Commission's orders:

"Every order of the Commission shall be served upon every person or corporation to be affected thereby either by personal delivery of a certified copy thereof, or by mailing in the United States mail a certified copy thereof, in a sealed package with postage prepaid * * *. * * * mailing in the United States mail as hereinbefore provided, shall constitute service, without additional proof of a receipt of said certified copy or copies of said order. It shall be the duty of every person and corporation to notify the Commission forthwith, in writing, of the receipt of the certified copy of every order so served * * *." (Ill. Rev. Stat. 1971, ch. 111 2/3, par. 70.)

According to the statute, an order may be presumed to be served when it is properly mailed.

Orrway argues that the presumption of receipt does not apply because the record does not contain evidence sufficient to prove service. (See ITT Abrasive Products Co. v. Lewis (1973), 12 Ill. App.3d 83, 298 N.E.2d 242.) At the May 25 revocation hearing, the only evidence presented was the testimony of a Commission employee who stated that from the Commission's files it appeared that:

"* * * On April 26, 1972, the Illinois Commerce Commission entered an order which was served on May 5, 1972, citing Respondent to appear at the office of the Commission on May 25, 1972, to show cause * * *."

Orrway contends that this conclusory testimony is insufficient to prove the fact of service because it does not specify to whom or in what form the notice was purportedly given. We note that the record on appeal does not contain any proof of service, such as a certified mail return receipt, a sheriff's return, or Orrway's written acknowledgement of receipt of the order as is required by section 66. The record does contain the following Commission docket entry for May 5, 1972:

"Certified copy of Citation Order mailed to Orrway Motor Service, Inc. [street address], by U.S. certified mail ...

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