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King v. Commerce Com.





APPEAL from the Circuit Court of Champaign County; the Hon. BIRCH E. MORGAN, Judge, presiding.


Plaintiffs appeal from the order of the trial court which found that the Illinois Commerce Commission (herein Commission), had statutory authority to enter its supplemental order in Docket No. 56742 and 57247, that the Commission made adequate findings to support the supplemental order, that the findings of the Commission were supported by the evidence and not against the manifest weight of the evidence. The court further found that there was a partial rescission of a lawful certificate (of necessity and convenience) issued by the Commission, and that the order at issue was not a certificate of convenience and necessity for a new or different facility.

The record incorporates an extended sequence of pleadings and proceedings before the Commission culminating in the order on appeal. In October, 1971, pursuant to a petition of the Illinois Power Company (herein Illinois), docketed No. 56742, the Commission granted a certificate of convenience and necessity for a 345 kv electric transmission line extending from Latham in Logan County, to Rising in Champaign County and to Sidney in the same county. From the point of origin the line extended 48 miles to Rising where an appropriate station was to be constructed.

Lesser transmission lines originating at Rising were to be a source of additional power to Champaign-Urbana. From Rising the transmission line extended some 20 miles to Sidney to be connected to an existing station.

So authorized and constructed the transmission line would be a source of additional power for the Sidney station, and was planned as a facility for interconnection with other sources so that service could be maintained by switching to the associated sources upon the occurrence of outages in the Illinois system. The findings and evidence supporting such original certificate are not challenged.

Subsequently, in March 1972, pursuant to a petition filed as Docket No. 57247, an order of the Commission authorized Illinois to acquire right-of-way with authority to proceed under eminent domain and to construct the line.

Plaintiffs were granted leave to intervene in the latter petition. The issues raised by plaintiffs were an alleged failure to negotiate in good faith as to the type of pole structure and the placing of such on the lands of the respective plaintiffs. The land so concerned lies upon the Latham-Rising section of the line.

At the hearings held on the petition, Docket No. 57247, counsel for Illinois advised that the University of Illinois claimed that the Rising-Sidney segment of the line might interfere with the safety requirements of its Willard Airport, and that it would not proceed with the construction on such segment until the further order of the Commission.

Thereafter, in August, the trustees of the University filed a petition for leave to intervene and for reconsideration in both Docket No. 56742, the proceedings for a certificate of necessity, and Docket No. 57247, the order for construction. The petition set out the factor of hazard arising from the construction of the transmission lines (the Rising-Sidney source) "in the immediate vicinity" of the Willard Airport, and that such construction would unduly restrict the future growth and expansion of that facility. Such petition prayed reconsideration of the certificate of necessity in so far as it pertained to the construction of the line in such "immediate vicinity." In January, 1973, the county board of Champaign filed a similar petition with comparable allegations. Neither are parties to this appeal.

In September, 1972, in Docket No. 57247, the Commission authorized and directed Illinois to proceed and acquire right-of-way and to construct the Latham-Rising, but directed that no construction in any part of the Rising-Sidney segment be commenced without further approval of the Commission. Such order further directed that as to Docket No. 56742, "[A]s it relates to the Rising-Sidney segment of the electric transmission line be reopened for further consideration."

As to Docket No. 57247, plaintiff, King, filed a motion to reconsider such order. That motion was directed to the sufficiency of showing the necessity for eminent domain. The motion was denied. We find no similar motion as to plaintiffs, Timmons.

In January 1973, Illinois filed its petition in the reconsolidated proceedings reciting the procedural development and status of the case, and that in Docket No. 57247, the Commission had found inter alia that Illinois could defer construction of the Rising segment until further approval of the Commission. Such petition alleged that the construction of the Latham-Rising segment will enable the supply of immediate electrical needs and that interconnection with other systems through the Rising-Sidney segment could be delayed temporarily while a new route or interconnection was designed and obtained. The petition alleged that Illinois would seek a new route for a transmission line to serve the purposes of interconnection with other sources.

The petition prayed that upon such record that the Commission find that the public convenience and necessity does not require the immediate construction and operation of the Rising-Sidney segment as originally proposed and order:

"[T]hat the Commission's Order and Certificate of Public Convenience and Necessity granted on October 20, 1971, in Docket No. 56742, be altered and modified by rescinding that portion of said Order and Certificate authorizing, ordering and directing petitioner to construct, operate and maintain the Rising to Sidney portion of the proposed line and providing that ...

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