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12/30/87 Douglas Transit, Inc., Et v. the Illinois Commerce

December 30, 1987

DOUGLAS TRANSIT, INC., ET AL., PLAINTIFFS-APPELLANTS

v.

THE ILLINOIS COMMERCE COMMISSION, DEFENDANT-APPELLEE (A & B FREIGHT LINES, INC., ET AL., INTERVENORS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

517 N.E.2d 724, 164 Ill. App. 3d 245, 115 Ill. Dec. 313 1987.IL.1964

Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

Rehearing Denied January 29, 1988.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. GREEN, P.J., and SPITZ, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Douglas Transit, Inc., and Hunt Super Service, Inc., appeal a circuit court order affirming a decision of the Illinois Commerce Commission (Commission). The Commission granted their joint petition to transfer Douglas' certificate of public convenience and necessity (certificate) but found a large percentage of Douglas' prior hauling activity was outside of the scope of its certificate as originally granted. It found other authority had been abandoned.

Douglas Transit, Inc. (Douglas), and Hunt Super Service, Inc. (Hunt), argue: the Commission improperly modified the scope of the certificate in a transfer proceeding; Douglas' right to notice and an opportunity to be heard on the interpretation issue were violated; the Commission misinterpreted Brink's, Inc. v. Illinois Commerce Comm'n (1982), 108 Ill. App. 3d 186, 439 N.E.2d 1; the Commission improperly applied the doctrine of ejusdem generis ; and the Commission is estopped from limiting the scope of the certificate. The Commission asserts Douglas is collaterally estopped from relitigating the scope of its certificate.

We reverse and remand.

On May 16, 1983, Douglas and Hunt applied for a transfer of Douglas' authority to haul intrastate goods. Douglas and Hunt had entered an agreement for the sale of the certificate. On February 4, 1983, Douglas filed a bankruptcy petition. During the second week of February 1983, Michael Smith started dispatching trucks at the request of Douglas' attorney.

Notice of public hearings on the proposed transfer was published in various newspapers. Douglas' common carrier certificate authorized it to transport "livestock, farm products, feed, coal, merchandise, furniture and commodities general within a fifty (50) mile radius of the Post Office at Newman, Illinois, and to transport such property to or from any point outside such authorized area of operation for a shipper or shippers within such area; also, livestock, farm products, feed, coal, merchandise, furniture and commodities general to or from any point or points within the State of Illinois."

Several firms intervened, objecting to the transfer and raising the scope of the certificate in their arguments as an issue. Gary Armstrong, Douglas' president, testified that in February 1983, Douglas filed a bankruptcy petition. After the petition had been filed, Douglas agreed to sell to Hunt. Douglas and Hunt had filed for a temporary permit, which the Commission granted. Armstrong prepared an abstract of shipping for the hearing. The abstract was a sampling of the type of freight hauled by the firm during the two years preceding the transfer petition. Armstrong testified that Douglas had transported soybean meal, liquified petroleum gas, all grades of rock, anhydrous ammonia, coal, all types and grades of stone, foodstuffs, bulk materials, solvents, plastic bottles, dry fertilizer, dairy products, boring machines, dirt, magazines, corn gluten meal, sand, agricultural limestone, gravel, pallets, tool sheds, road salt, books, liquid fertilizer, garden mulch, lactic acid, cylinders, shortening, grain, road oil, cold patch asphalt, pig iron, pipe, paper rolls, seed corn, dryers, bedding rock, miscellaneous wide loads, junk, and dust. The sampling was merely representative of the types of materials Douglas hauled.

The Commission approved the transfer. However, in a section of the order entitled "Interpretation of Transferor's Common Carrier certificate," it reviewed the Brink's decision. The Commission noted that the common carrier authority held by Douglas had been granted pursuant to the grandfather provision of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 18-305). The Commission further noted the appellate court held Douglas' certificate did not authorize transportation of armored car commodities. The Commission then stated that Brink's applied in the instant proceeding. Based on the doctrine of ejusdem generis, it determined that grain, feed, coal, fertilizer, seed, dairy products, foodstuffs, plastic bottles, boxes, pallets, tool sheds, books, boring machines, magazines, cylinders, pig iron, pipe, and paper rolls were within the scope of Douglas' hauling authority as originally granted in its certificate. It found the remaining commodities listed in the abstract of shipment were not similar to items listed in the certificate and were, thus, outside the scope of the operating authority. Then, the Commission analyzed activities which Douglas had engaged in in the prior two years as evidenced in the shipping abstract. It determined that Douglas had abandoned its authority to transport any commodities which it had not specifically transported in the prior two years which had been determined to be within the scope of its certificate.

A brief review of the relevant statutory provisions is necessary to an understanding of our Disposition. In order to transport goods in Illinois, each carrier must be licensed and regulated by the State. Section 18-305 of the Code provides for the automatic issuance of a certificate to firms which were operating under the former trucking act. The section provides that authorization is limited ...


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