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Brink's, Inc. v. Illinois Commerce Com.

OPINION FILED DECEMBER 6, 1979.

BRINK'S, INCORPORATED ET AL., PLAINTIFFS-APPELLEES,

v.

ILLINOIS COMMERCE COMMISSION, DEFENDANT-APPELLANT — (WELLS FARGO ARMORED SERVICE CORPORATION, INTERVENING DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, and the Hon. JAMES C. MURRAY, Judges, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

This interlocutory appeal was brought by the Illinois Commerce Commission (Commission) and Wells Fargo Armored Service Corporation (Wells Fargo), pursuant to Supreme Court Rule 307 (Ill. Rev. Stat. 1977, ch. 110A, par. 307), for review of certain interlocutory orders of the circuit court of Cook County. The orders stayed an order of the Commission allowing the operation of Wells Fargo as an additional armored carrier in certain counties in Illinois. The Commission's order allowing Wells Fargo to so operate came to the circuit court for administrative review pursuant to provisions of the Public Utilities Act. Ill. Rev. Stat. 1977, ch. 111 2/3, par. 1 et seq.

The only issue presented for review here is whether the circuit court abused its discretion by ordering a stay of the order of the Commission allowing the additional carrier operation. We affirm the trial court's ruling.

On May 16, 1979, the Commission entered an order granting Wells Fargo a permit to conduct armored carrier operations in Cook, Du Page, Will and Lake Counties pursuant to section 18-302 of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 18-302). Wells Fargo's application was contested by other armored carriers which provide armored service in that area.

After the Commission issued the permit to Wells Fargo, Brink's, Inc. (Brink's) and the other current carriers moved the Commission to stay its order and to grant a rehearing. The Commission denied the motions.

On July 16, 1979, Brink's filed its notice of appeal from the Commission's order to the circuit court in case No. 79 L 15275. Brink's filed a motion in the circuit court on July 20, 1979, seeking a stay of the effect of the Commission's order. Wells Fargo filed a verified answer which attacked the legal sufficiency of Brink's motion. After hearing argument on the motion, the court entered on order which stayed the effect of the Commission's order until July 30, 1979, at 2 p.m.

Both the Commission and Wells Fargo filed notices of interlocutory appeal pursuant to Supreme Court Rule 307 (Ill. Rev. Stat. 1977, ch. 110A, par. 307). Wells Fargo also filed an emergency motion for a stay of the circuit court's order. This court granted the motion and ordered that the trial court's order be stayed, pending review.

On August 2, 1979, Purolator Security, Inc. (Purolator) filed a similar case to that of Brink's in the circuit court, asking for a stay of the Commission's order. Both cases were transferred on August 2, 1979, and consolidated for hearing by the court. On August 14, 1979, after hearings, Judge Murray issued an order staying the May 16, 1979, ruling of the Commission. An interlocutory appeal pursuant to Supreme Court Rule 307 was taken from Judge Murray's order and is now before this court.

• 1 The Commission and Wells Fargo contend the circuit court lacked the authority to stay the Commission's order. On July 20, 1979, Brink's asked the circuit court to stay the effect of the Commission's order. On that day, Judge Dunne stayed the Commission's order until July 30, 1979, at 2 p.m. Brink's asserts that Judge Dunne's order is moot because the stay time period has passed. We agree that his order is moot, but we believe the question presented is one of such substantial public interest that it requires us to rule on the underlying issue. As the court stated in Harper College Faculty Senate v. Board of Trustees (1977), 51 Ill. App.3d 443, 444, 366 N.E.2d 999, 1000:

"`Among the criteria considered in determining the existence of the requisite degree of public interest are the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.'"

This question, as to the authority of the circuit court to stay the Commission's order, clearly falls within the public interest exception. The Commission issues hundreds of orders on this subject yearly, and there is a great likelihood of the future recurrence of this issue.

• 2 After the two cases were consolidated, Judge Murray heard testimony from witnesses produced by Brink's, Purolator and Wells Fargo. The witnesses for Brink's and Purolater testified that the entry of a new carrier into the market which previously was serviced by other carriers would result in a diversion of some existing customers to the new carrier. This would produce a consequent diversion of certain revenues from the existing carriers to the new carrier. The witness for Wells Fargo testified that Wells Fargo was seeking business in the four-county area, and that it had solicited and would continue to solicit customers of Brink's and Purolator.

Judge Murray, on August 14, 1979, entered an order which stayed the May 16, 1979, order of the Commission. He also required that a suspending bond in the amount of $500,000 be posted by petitioners with the Commission.

Judge Murray applied section 71 of the Public Utilities Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 75) as the basis for his authority in issuing the stay ...


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