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Nussbaum Trucking, Inc. v. Ill. Commerce Com.





APPEAL from the Circuit Court of Kane County; the Hon. JOHN A. KRAUSE, Judge, presiding.


The Illinois Commerce Commission (hereinafter ICC) conducted hearings on the petition of C.P. Brown and I.C. Hemmings (hereinafter applicants) to acquire control of Chicago Express Co., Inc. (hereinafter the carrier) by purchase of its outstanding capital stock. Approval of such an acquisition by the ICC is governed by the provisions of section 18-309 of the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 18-100 et seq.). A number of carriers were permitted to intervene in the proceedings for the purpose of objecting to the acquisition. Following the offer and acceptance of a restrictive amendment relating to commodities and territory, however, a number of the intervenors withdrew. Of the remaining five intervenors, the three plaintiffs, Nussbaum, Carstensen and Horn (hereinafter plaintiffs) successfully sought reversal of the ICC's order in the circuit court of Kane County, which remanded the cause to the ICC. The ICC here appeals that reversal.

This is the background of the case: In 1967, the ICC approved acquisition of control of the carrier by the Martin-Brower Corporation. Approximately one year later, Martin-Brower sold the carrier to Dr. Thomas Brown; this sale was unlawful because the sale was made without ICC approval. Next, Dr. Brown sold the carrier to Ronald Drobny; this sale was also unlawful because there was no ICC approval. Drobny died suddenly in an auto accident in March 1977. According to applicant Hemming's testimony, the carrier at that time was in dire financial straits, had no money to meet the payroll, and its employees were refusing to work. The carrier was managed solely by Drobny, and it had served since 1973 as the local cartage agent and interline carrier on interstate traffic in Chicago for the applicants' corporation, Brown Transport. Hemmings testified they looked for another local carrier to replace Chicago Express, but found none which was suitable or which was interested in interlining. In order to get their freight moving again, applicants assumed control of the carrier's operations and began negotiations with Drobny's widow for purchase of the carrier's stock. Applicants petitioned the ICC for temporary authority on December 19, 1977, and it was granted on January 4, 1978.

At the time of the hearing below before the ICC, Drobny's widow had sold the applicants the carrier's stock. This sale was likewise unlawful because there was no prior ICC approval. The circuit court order, which is the subject of this appeal by the ICC, reversed after an appeal by intervening trucking companies the ICC's somewhat belated approval of the applicant's acquisition of control of the carrier.

In its lengthy order of March 19, 1980, granting approval of the acquisition, the ICC found, inter alia, that: (a) it had jurisdiction of the cause; (b) the carrier possessed a certificate issued by the ICC on September 14, 1967, authorizing it to perform intrastate transportation of certain specified commodities in a certain specified territory; (c) abstracts of representative shipments sufficient to show the carrier had been in active operation were introduced; (d) that all of carrier's outstanding stock has been sold to the applicants; (e) that the evidence showed the applicants were qualified financially and by experience to control and operate the carrier; (f) that the evidence introduced by the intervening carriers had not persuaded the ICC that the acquisition of the carrier by the applicants would result in destructive competition that would cause a deterioration in service or quality with consequential harm to existing carriers and the shipping public; and (g) that approval of the acquisition would be consistent with the public interest in that the carrier is and has been supplying the service for which there was a demonstrated public need. The ICC's findings were prefaced by a detailed recitation of the facts of the case and the evidence received during hearings.

The ICC denied rehearing, and plaintiffs appealed to the circuit court, which court reversed the ICC's order on January 5, 1981, and remanded it thereto "for further proceedings consistent with this decision." The circuit court found, inter alia, that: (a) the seller of the carrier's stock to the applicants, the estate of R.J. Drobny, never had legal title thereto; (b) all operations conducted under the authority of the carrier's certificate by anyone other than the last ICC-approved party (Martin-Brower Corporation) were illegal; (c) the ICC's approval of the acquisition was contrary to the law; (d) the evidence does not support approval under section 18-309 of the Illinois Motor Carrier of Property Law; and (e) the ICC's order failed to make the findings specified by section 18-309 and was, therefore, invalid.

The ICC raises these issues on appeal:

(1) Whether it made the requisite specific findings;

(2) Whether those findings were supported by the manifest weight of the evidence;

(3) Whether its order was contrary to law, and

(4) Whether the circuit court had authority to remand the cause to it and direct that it make certain findings of fact.

• 1, 2 The ICC correctly points out that the scope of authority of the reviewing court in this case is limited to a determination of (1) whether the ICC acted within the scope of its authority; (2) whether it made findings in support of its decision; (3) whether the findings have substantial support in the record, and (4) whether constitutional rights have been violated. (Illinois Bell Telephone Co. v. Illinois Commerce Com. (1973) 55 Ill.2d 461; Monarch Gas Co. v. Illinois Commerce Com. (1977), 51 Ill. App.3d 892.) Further, findings and conclusions of fact of the ICC are held to be prima facie true and will not be set aside unless they are against the manifest weight of the evidence. (Monarch; Village of Hartford v. Illinois Commerce Com. (1979), 75 Ill. App.3d 133.) However, as plaintiffs point out, this rule does not apply to conclusions of law. Leslie Car Wash v. Department of Revenue (1976), 39 Ill. App.3d 931, 934.

Section 18-309(3) requires that before the ICC approve an acquisition of control, it must find 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 of the act. Ill. Rev. Stat. 1979, ch. 95 1/2, pars. 18-309(3), 18-101.

The circuit court's order recited its finding that the ICC's order failed to contain these specific findings in that the language used by the ICC was "not synonymous with the language employed by section 18-309(3)" and that these findings were an indispensable prerequisite to the validity of the order. In accord with that finding, the plaintiffs state that an express finding is indispensable (Rockwell Lime Co. v. Commerce Com. (1940), 373 Ill. 309, 323), and cite Knox Motor Service, Inc. v. Illinois Commerce Com. (1979), 77 Ill. App.3d 590, for the proposition that authority which is not being actually and substantially used is not synonymous with "authority which has been abandoned, suspended or discontinued." The appellate ...

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