Appeal from the Circuit Court of Sangamon County; the Hon.
Simon L. Friedman, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Plaintiff filed suit in the circuit court of Sangamon County seeking to obtain a refund of certain franchise fees assessed by the Illinois Commerce Commission pursuant to section 18-801(2)(b) of the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 18-801(2)(b)). Both plaintiff and the defendants filed motions for summary judgment and the trial court allowed the defendants' joint motion and denied the plaintiff's motion. This appeal followed.
The essential facts are not disputed. Plaintiff is an Ohio carrier and on September 23, 1981, the Illinois Commerce Commission (ICC) adopted a resolution requiring all Ohio carriers to pay a franchise fee of $31, the same fee being charged to Illinois carriers by the State of Ohio. The authority upon which the resolution was based is found in section 18-801(2)(b) of the Illinois Motor Carrier of Property Law which states:
"(b) The Commission may negotiate and enter into written Reciprocity Agreements with other states and provincial jurisdictions. However, in the absence of an agreement the Commission may examine their laws and requirements. As a result of that examination, the Commission may require any motor carrier from a foreign jurisdiction, which does not extend such reciprocal benefits and privileges, to pay an appropriate fee based upon what the jurisdiction charges the Illinois motor carrier. The Commission shall file a copy of each written Agreement or Declaration with the Secretary of State." Ill. Rev. Stat. 1981, ch. 95 1/2, par. 18-801(2)(b).
It appears that Illinois charged the carriers of other States a maximum fee of $2 under reciprocity agreements but that repeated efforts to negotiate such an agreement with the State of Ohio had come to naught.
On December 7, 1981, plaintiff paid to the ICC the sum of $6,712 for 3,356 identification stamps for its trucks, this being at the rate of $2 each. No challenge is made to the $2 charge. The ICC demanded an additional $29 for each stamp pursuant to the resolution of September 23, and on December 21, 1981, plaintiff paid the additional $97,324 under protest. The ICC placed that sum in the protest fund where presumably it still remains. The instant suit was then filed on January 12, 1982.
While it is immaterial to our disposition of this case, the record discloses that subsequent to its filing, this State and the State of Ohio did enter into a reciprocity agreement providing for an annual fee of $1.
On appeal plaintiff has raised a variety of issues claiming constitutional and statutory violations. However, we need not reach all of these, since we find that the disposition of the fees collected by the ICC under its resolution of September 1981 is in violation of Federal law.
At the outset, it should be made clear that the ICC was possessed of the power to adopt the resolution. Regulation of interstate commerce generally is the province of the Federal government. Where Congress has chosen to regulate a particular field of commerce, State regulations affecting that field will be invalidated only when it is apparent that Congress has preempted the field or when State law conflicts with Federal law. Jones v. Rath Packing Co. (1977), 430 U.S. 519, 51 L.Ed.2d 604, 97 S.Ct. 1305.
Congress has chosen to regulate transportation through the Interstate Commerce Act, but the relevant language in section 11506 of that Act (49 U.S.C. § 11506 (Supp. IV 1980)) demonstrates that Congress did not intend to preempt the field. That language is as follows:
"(b) The requirement of a State that a motor carrier, providing transportation subject to the jurisdiction of the Commission under subchapter II of Chapter 105 of this title and providing transportation in that State, register the certificate or permit issued to the carrier * * * is not an unreasonable burden on transportation * * * when the registration is completed under standards of the Commission under subsection (c) of this section. When a State registration requirement imposes obligations in excess of the standards, the part in excess is an unreasonable burden."
Pursuant to this authority, the Interstate Commerce Commission promulgated the standards which are set forth in section 1023.33 of title 49 of the Code of Federal Regulations (49 C.F.R. sec. 1023.33 (1981)), and which state in relevant part:
"The application shall be duly completed and executed by an official of the motor carrier, and shall be accompanied by the fee, if any, prescribed by the law of such State; provided, however, that such fee shall not exceed $5 for the issuance of each such identification stamp; and provided further (when the State commission assigns an identification number in lieu of issuing an identification stamp or stamps), that such fee shall not exceed $5 for each vehicle operated under the authority of the motor carrier identified in the cab card bearing such identification number. The prescription of the maximum fee of five dollars for issuance of such identification stamp or number shall not preclude a State from imposing an additional fee in a reasonable amount to be paid to a State commission prior to the issuance of such stamp or number, if such additional fee shall be subject to exclusive use by the State commission and used by it solely for defraying the cost of the regulation of carriers by highway operating within the borders of such State and the enforcement of laws pertaining thereto. The State commission shall maintain adequate records to identify the receipt and disbursement of such funds collected pursuant to the provisions of this section."
We note, again parenthetically, that section 1023.33 was amended in 1982 to set an absolute limit of $10 on ...