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Cooper v. Commerce Com.

OPINION FILED MAY 24, 1977.

GEORGE D. COOPER, D/B/A COOPER CARTAGE, ET AL., PLAINTIFFS-APPELLEES,

v.

ILLINOIS COMMERCE COMMISSION, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

This is an action to review an order of the Circuit Court of Cook County, reversing and remanding an order of the Illinois Commerce Commission (hereinafter "Commission") denying approval of a proposed transfer of a certificate of public convenience and necessity from Cooper Cartage (hereinafter "transferor") to La Porte Transit Co., Inc. (hereinafter "transferee"), appellees. The Commission's order, as entered, modified transferor's certificate of authority upon a finding that certain territory within this authorization was deemed to have been abandoned, suspended or discontinued within the purview of the Illinois Motor Carrier of Property Act. (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 18-100 et seq.) The proposed transfer was approved with this modification. The sole question presented for review is whether the Commission's finding regarding the allegedly abandoned area is contrary to the manifest weight of the evidence.

It appears of record that since January 26, 1955, transferor was possessed of a certificate issued by the Commission authorizing transferor to perform a transportation service in intrastate commerce within the State of Illinois limited to the following commodities and territory:

"General commodities and raw milk within a fifty (50) mile radius of 547 North Milwaukee Avenue, Libertyville, Illinois, and to transport such property to or from any point outside of such authorized area of operation for a shipper or shippers within such area."

Service was not authorized over regular routes. Thus, transferor's services may be provided from, to or between areas over any highways and without scheduled or regular routes between predestined points.

By joint verified application filed September 25, 1972, appellees sought to transfer this authority. Petitions for leave to intervene were filed by counsel for several motor carriers (hereinafter "intervenors"). The matter came on for a hearing on February 6, 1973, July 3, 1973, September 18, 1973 and October 19, 1973. On June 4, 1975, an order of the Commission, entered May 28, 1975, was served recommending that a certificate be issued to transferee. However, this order cancelled a portion of the territorial description utilized in the transferor's certificate and limited such authorization to service within the political boundaries of Cook, Du Page, Kane, Lake and McHenry Counties, Illinois. This modification was ordered on the ground that, insofar as the excluded territory was concerned, there had been an abandonment, suspension, or discontinuance of operations.

Appellees appealed this order of the Circuit Court of Cook County which found that the Commission had erred in finding that transferor had abandoned, suspended or discontinued operations and remanded the cause for further proceedings on the authority of Be-Mac Transport Co. v. Illinois Commerce Com. (1967), 38 Ill.2d 154, 230 N.E.2d 216. From this order the Commission appeals.

A review of the evidence adduced at the various hearings on the proposed transfer indicates that during the time George D. Cooper held his authority he maintained terminals in Chicago and Libertyville, Illinois, operated 18-20 trailers, 6-8 tractors and 3 trucks, employing 10-11 drivers and clerical support personnel. Approximately 50% of his yearly revenue was gained from Illinois intrastate commerce. Cooper testified that Cooper Cartage held out service to all points authorized by its certificate continuously during this period. To this end, Cooper placed periodic advertisements in a motor freight directory. He also maintained tariffs and insurance covering the entire territory within the scope of his authority.

Transferor also introduced evidence regarding an abstract of approximately 3,000 representative shipments relative to his operations between March 1, 1971, and March 31, 1972. Summaries of the points served by this operation were also adduced. It appears that a considerable portion of this traffic was routed on an "interline" basis. *fn1 Under this mode of service two carriers combine their authority at a common gateway point. Thus, where the volume of business and the size of an individual shipment are such that it is unprofitable to route the transferor's own vehicle directly to the delivery point, the shipments are transferred to the connecting carriers for delivery. There is no dispute that the "interline" mode of delivery constitutes common practice in the trucking industry or that the practice was so employed by the instant transferor.

After March of 1972, transferor was compelled to curtail his business due to the steadily deteriorating health of his spouse. In May 1972, Cooper advertised that his operation was for sale. La Porte responded to this solicitation and in May and June 1972 attorneys for La Porte commenced negotiations for the purchase of Cooper's equipment and the assignment of his authorization. These negotiations culminated in a purchase agreement executed in June 1972. *fn2

Cooper testified that during the course of these negotiations he continued to operate his business and to this end retained five employees. Upon execution of the purchase agreement, Cooper placed the bulk of his equipment into storage for La Porte until they were able to obtain operating rights. By the time such authorization was obtained in December 1972, Cooper was operating "by himself" since his drivers had sought other employment. Cooper retained two trucks for this purpose. Transferee thereafter operated under the certificate in question pursuant to a grant of temporary authority. Cooper indicated that should the instant petition be denied he would be able to recommence operations.

Representatives of various carriers also testified before the Commission in opposition to the application for permanent transfer. None characterized transferor as a competitior and identified the base of his operations, when known, as the Libertyville area. However, none testified that their operations had experienced any diversion of traffic during the period of time that the certificate was operated under the temporary authority of transferee. It appears that these intervenor's clients were shippers with whom they had long-standing business relationships. None testified that they had received notice from such shippers that a diversion of traffic would be forthcoming. Indeed, it appears that tonnage and revenues have been regularly increasing on a yearly basis.

The governing statute is section 18-309(c) of the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 18-309(c)) which provides in pertinent part:

"If the Commission finds that (1) the proposed purchaser or lessee is fit, willing and able, (2) that the proposed seller or lessor has not abandoned, suspended, or discontinued operations, and (3) that the transaction proposed will be consistent with the public interest and the policy declared in this Chapter and that the conditions of this Section have been or will be fulfilled, it shall enter an order approving and authorizing such transfer, consolidation, merger, purchase, ...


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