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Jenkins Truck Line, Inc. v. Commerce Com.

OPINION FILED MAY 29, 1981.

JENKINS TRUCK LINE, INC., ET AL., PLAINTIFFS-APPELLANTS,

v.

THE ILLINOIS COMMERCE COMMISSION, DEFENDANT-APPELLEE.



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

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

The Illinois Commerce Commission found a partial abandonment.

It was partially correct and partially wrong. And its order was arcane.

We remand.

Previous to December 8, 1975, Larry Fenner Transport, Inc. (Fenner), operated under a common carrier certificate authorizing the following transportation service:

"Machinery, machinery parts, agricultural implements, farm machinery and farm tractors between all points in the State of Illinois; also, iron and steel products and building materials within a Fifty (50) mile radius of Silvis, Illinois, and to all points and places in Illinois for a shipper or shippers within a Fifty (50) mile radius of Silvis, Illinois. RESTRICTED against the transportation of cement."

On that date Fenner, along with Jenkins Truck Line, Inc. (Jenkins), petitioned the Illinois Commerce Commission (Commission) for authorization for Jenkins to acquire control of Fenner's operating authority by purchasing all of Fenner's capital stock. Three other common carriers intervened in this proceeding, contending that Fenner had abandoned all or part of its operating authority. These intervenors withdrew, however, when Fenner and Jenkins agreed that a certain restriction — not at issue here — would be placed upon the operating authority transferred to Jenkins.

Following a hearing, the Commission entered an order in which it found:

"* * * that the operations of Fenner Transport were not abandoned, suspended, discontinued or dormant to the following extent:

Machinery, machinery parts and agricultural implements between points lying north of U.S. Highway 36, on the one hand, and all points within the State of Illinois on the other; building materials (except cement) and steel articles within a fifty (50) mile radius of Silvis, Illinois."

The Commission made this finding pursuant to section 18-309(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 18-309(c)). That section requires the Commission to hold a hearing whenever application is made for transfer of a common carrier certificate.

"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, * * * upon such terms and conditions as it finds to be just and reasonable."

Jenkins and Fenner appealed the Commission's finding to the circuit court, which in turn affirmed the order. This appeal concerns the propriety of the Commission's decision under section 18-309(c)(2), that a portion of Fenner's operating authority had become "abandoned, suspended, or discontinued."

Under its original operating authority, Fenner could transport the named commodities between any two points in the State of Illinois. Under the authority that the Commission has approved for transfer, however, Jenkins would be unable to make shipments between two points south of ...


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