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Ill. Consol. Telephone v. Aircall Communications

OPINION FILED NOVEMBER 19, 1981.

ILLINOIS CONSOLIDATED TELEPHONE CO., PLAINTIFF-APPELLANT,

v.

AIRCALL COMMUNICATIONS, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Coles County; the Hon. CARL A. LUND, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal presents yet another facet of the seemingly endless contention between the parties as to which of them will provide paging services in Coles County.

On April 16, 1980, the Illinois Commerce Commission (Commission) granted to Aircall Communications, Inc., defendant-appellee herein (Aircall), a certificate of public convenience and necessity to perform paging services in Coles County. Illinois Consolidated Telephone Company, plaintiff-appellant herein (Telephone), appealed the order granting Aircall's certificate to the circuit court of Coles County. That court reversed and remanded the Commission's order on December 15, 1980. The Commission appealed the circuit court's order to this court, which affirmed the circuit court in Illinois Consolidated Telephone Co. v. Illinois Commerce Com. (1981), 99 Ill. App.3d 462, 425 N.E.2d 535.

During the pendency of the appeal to this court on May 15, 1981, Telephone filed a complaint in the circuit court of Coles County against Aircall seeking a preliminary and permanent injunction restraining Aircall from providing paging service in Coles County, and for damages. Aircall filed a motion to dismiss the request for preliminary injunction. The trial court held an evidentiary hearing on the matter and on June 2, 1981, entered an order sustaining Aircall's motion and denying injunctive relief. This interlocutory appeal followed pursuant to Supreme Court Rule 307(a)(1) (73 Ill.2d R. 307(a)(1)).

The trial court's order is based at root on the theory that the Commission's order is still in effect, notwithstanding the appeal process. The order further recites that Telephone has suffered no irreparable injury. We disagree and reverse.

We believe that the trial court misapprehended the meaning and effect of section 71 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 75). In pertinent part that section is read:

"The pendency of an appeal shall not of itself stay or suspend the operation of the rule, regulation, order or decision of the Commission, but during the pendency of the appeal the circuit court, or the reviewing court, as the case may be, in its discretion may stay or suspend, in whole or in part, the operation of the Commission's rule, regulation, order or decision."

The trial court took the apparent position that this section is tantamount to an automatic operation of the order during the entire appeal process. Such an interpretation would enervate, if not destroy entirely, the appeal process. It is admitted here that no stay was ever sought. Therefore, the Commission's order awarding a certificate to Aircall remained in force until the decision of the circuit court on December 15, 1980. As has been indicated, that decision reversed the Commission's order. At that juncture the Commission's order necessarily expired and the reversal order of the circuit court stood in its stead to be governed by the stay provisions of Supreme Court Rule 305(b)(1) (73 Ill.2d R. 305(b)(1)). No stay was sought under that rule.

The Public Utilities Act itself makes just such a provision in section 69 which is read as follows:

"Appeals from all final orders and judgments entered by the circuit court, in review of rules, regulations, orders or decisions of the Commission, may be taken as in other civil cases." Ill. Rev. Stat. 1979, ch. 111 2/3, par 73.

Furthermore, Supreme Court Rule 1 (73 Ill.2d R. 1) provides in part:

"The rules on appeals supersede statutory provisions inconsistent with the rules and govern all appeals."

If the statutory provisions of section 71 of the Public Utilities Act set forth above may in any sense be interpreted as an attempt to govern appeals from the circuit court, they must yield to the Supreme Court Rules. People v. Jackson (1977), 69 Ill.2d 252, 371 N.E.2d 602.

• 1 However, we do not believe that any such conflict exists because we discern a step-by-step process from the Commission through the circuit and reviewing courts>. Section 67 of the Public Utilities Act (Ill. ...


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