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Knox Motor Service, Inc. v. Commerce Com.

OPINION FILED OCTOBER 16, 1979.

KNOX MOTOR SERVICE, INC., ET AL., PLAINTIFFS-APPELLEES,

v.

ILLINOIS COMMERCE COMMISSION, DEFENDANT-APPELLANT. — (RAPID TRUCK LEASING, INC., ET AL., PLAINTIFFS-APPELLEES,

v.

ILLINOIS COMMERCE COMMISSION, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Sangamon County; the Hon. JAMES T. LONDRIGAN, Judge, presiding.

MR. PRESIDING JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

This appeal is from an order of the Circuit Court of the Seventh Judicial Circuit, Sangamon County, which held that findings made by the Illinois Commerce Commission (Commission) pursuant to section 18-309 of the Illinois motor carrier of property law (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 18-309) were improper and against the manifest weight of the evidence.

The record reveals that on September 12, 1975, the plaintiffs, Rapid Truck Leasing, Incorporated (Rapid), and Goodwine Trucking, Incorporated (Goodwine), petitioned the Commission for an order authorizing Rapid to purchase all of the outstanding shares of Goodwine pursuant to the provisions of section 18-309.

The Commission held a hearing on the petition on November 10, 1975. Knox Motor Service et al. (Knox) intervened in the hearing in opposition to Rapid's application. Rapid presented shipping abstracts prepared from Goodwine's bills of lading for all the shipments undertaken by Goodwine from January 1, 1974, through September 30, 1975, as evidence of the nature of the trucking service Goodwine was actually providing. Donald Carrol, secretary of Goodwine, testified on behalf of Rapid that Goodwine's business primarily consisted of shipments of agricultural implements and machinery. However, Carrol testified that Goodwine had moved sheet steel from East Moline, Illinois, to Chicago on two occasions, and had also moved steel and iron from Rock Island, Illinois, to Moline, Illinois. Furthermore, on at least one occasion, Goodwine had moved tractors and excavating and loading or grading attachments from West Chicago to East Moline. Carrol stated that these were items of heavy equipment rather than pieces of agricultural machinery.

By an order dated May 4, 1977, the Commission granted the petition allowing Rapid to acquire the outstanding shares of stock of Goodwine. The Commission, however, also found that Goodwine had been granted a common carrier certificate by the Commission on April 16, 1969, authorizing transportation of "* * * Livestock, horses, sheep, brick, tile, canned goods, agricultural implements, machinery, and supplies, and road building equipment into or from any point or points within the State of Illinois," but was, at the time of the proposed acquisition, actually and substantially engaged in transporting "* * * Agricultural implements and repair parts for agricultural implements from points within a ten (10) mile radius of Moline, Illinois, to all points within the State of Illinois * * *." Consequently, the Commission ordered that Goodwine's 1969 certificate be cancelled and a new common carrier certificate be issued authorizing that service which the Commission determined Goodwine to be actually and substantially providing. Rapid, displeased with the modified operating authority contained in Goodwine's new certificate, which would transfer to Rapid upon acquisition, appealed the order of the Commission to the circuit court in Sangamon County.

On July 20, 1977, Rapid filed transcripts of the proceedings with the Commission pursuant to section 68 of the public utilities act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 72) which requires that a party appealing from a Commission order shall furnish to the Commission either a copy of the transcript of the evidence, including exhibits, or enter into a stipulation that only certain questions are involved. Rapid furnished to the Commission only those transcripts and exhibits relating to the latest transfer of certificate 15991MC from Goodwine to Rapid in Illinois Commerce Commission Docket Number 15991MC-Sub. 8. The Commission refused to certify the transcripts and exhibits of 15991MC-Sub 8 as the record on appeal and to file these documents with the clerk of the circuit court on the ground that the document of 15991MC-Sub 8 did not constitute a complete record. The Commission took the position that the entire and proper record on appeal consisted of the transcripts and exhibits of all the sub numbers pertaining to Goodwine's Motor Carrier Certificate 15991, those of 15991MC-Sub 1 through 15991MC-Sub 8. The Commission introduced evidence before the circuit court that it was the longstanding policy of the Commission to require the entire record to be filed in motor carrier transfer cases. The circuit court rejected the Commission's argument, holding that the transcripts and exhibits in 15991MC-Sub 8 alone constituted the complete record for administrative review.

Regarding the merits of the appeal, the circuit court entered an order on December 21, 1978, which stated:

"1. The Commission's finding, in paragraph eight (8), of said Order, that Goodwine Trucking Co. was actually and substantially engaged in the transportation of `Agricultural implements and repair parts for agricultural implements from points within a ten (10) mile radius of Moline, Illinois, to all points within the State of Illinois,' is not a proper finding upon which to base a deletion of commodities and territory from existing authority as required in Ill. Rev. Stat. 1976, ch. 95 1/2, par. 18-309 * * *."

The circuit court further held that the Commission order of May 4, 1977, was against the manifest weight of the evidence in that there were commodities and territory that were not abandoned, suspended, or discontinued, which the Commission failed to transfer. In addition, the circuit court ruled that Rapid need not demonstrate substantial motor carrier service of each and every commodity nor demonstrate service from and to each point of the existing authority to overcome the burden of proof of abandonment, suspension, or discontinuance of service.

On appeal, the Commission first contends that the circuit court's decision, holding that the Commission's order was based upon improper findings, was incorrect. The essence of the Commission's argument is that it made sufficient findings in its order upon which to base its decision that Goodwine had abandoned, suspended, or discontinued its authority to transport livestock, horses, sheep, bricks, tile, canned goods, agricultural supplies, and road-building equipment.

Section 18-309 of the Illinois motor carrier of property law, the statute governing the action of the Commission, provides:

"Transfer, consolidation, merger, and acquisition of control. 1. A certificate or permit may be transferred under the conditions specified below pursuant to such rules and regulations as the Commission may prescribe.

3. When a transaction is proposed under section [sic], the carrier of the person seeking authority therefor shall present an application to the Commission. The application shall contain a copy of the contract, including the terms of the proposed transaction, and an abstract of shipments performed by the transferring party within the last year prior to the date of such contract. The Commission shall, after due notice, set the application for a public hearing to determine whether the findings specified below may properly be made. When the Commission finds that (a) the purchaser or lessee is fit, willing and able, (b) that the operations of the proposed seller or lessor have not been abandoned, suspended, discontinued, or dormant and (c) that the transaction proposed will be consistent with the public interest and the declaration of policy set forth under section 18-101, it shall enter an order approving and authorizing the transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable." (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 18-309.)

Although we have not found, nor have the parties cited, any case interpreting the relevant portions of this statute, it is clear that the language of this section requires that the Commission make certain findings. Furthermore, section 65 of the public utilities act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 69), the general statute governing proceedings before the Commission, provides that following a hearing, the Commission shall ...


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