Alton R. Co. v. Illinois Commerce Commission

• Decision Date: 21 September 1950
• Docket Number: No. 31440,31440
• Citation: 95 N.E.2d 76,407 Ill. 202
• Parties: ALTON R. CO. et al. v. ILLINOIS COMMERCE COMMISSION et al.
• Court: Illinois Supreme Court

Page 76

95 N.E.2d 76

407 Ill. 202

ALTON R. CO. et al. v. ILLINOIS COMMERCE COMMISSION et al.

No. 31440.

Supreme Court of Illinois.

Sept. 21, 1950.

As Modified on Denial of Rehearing Nov. 17, 1950.

Richard O. Olson, and L. P. Day, both of Chicago, for appellant.

Livingston, Murphy & Barger, of Bloomington, Winston, Strawn, Shaw & Black, Vernon W. Foster, and Joseph H. Wright, all of Chicago (Herbert M. Livingston of Bloomington, Frank H. Towner, Bryce L. Hamilton, and Joseph F. Grinnell, all of Chicago, of counsel), for appellees.

DAILY, Justice.

The New York Central Railroad Company appeals to this court from a judgment of the circuit court of McLean County affirming an order of the Illinois Commerce Commission entered on December 11, 1947, directing appellant to restore certain industries to its switching district in the city of Bloomington and fixing switching rates therein.

This cause has been before the commission for a number of years. Originally a complaint was filed before that body by the Bloomington Association of Commerce, Union Gas & Electric Company and Funk Brothers Seed Company, appellees here. Later, The Alton Railroad Company and Illinois Central Railroad Company, who are also appellees, intervened in the proceeding. The complaint charged that appellant, on August 1, 1933, by amendments to its tariffs on file with the commission, had eliminated from its switching district in the western section of Bloomington, certain industries, including the two named above. It was alleged that such action deprived them of the benefit of reasonable switching rates fixed for the entire district, and it was prayed that appellant restore such industries to its switching district. On July 28, 1939, the commission, after hearings, entered an order restoring the industries to the district. This order was reversed on rehearing and on November 8, 1940, the commission entered an order which found the revision of appellant's switching district and its fixing of higher switching rates for the industries involved to be lawful, and dismissed the complaint. From this latter order an appeal was taken to the circuit court of McLean County, which court, on January 17, 1942, set aside the commission's final order and remanded the cause. This judgment was affirmed by this court in Alton Railroad Co. v. Illinois Commerce Comm., 382 Ill. 478, 48 N.E.2d 381, where the facts relating to the litigation more fully appear.

Upon remandment to the commission from this court, no further pleadings were filed except a cross complaint by appellant which charged that The Alton Railroad Company had also excepted certain industries on its tracks from its switching district at Bloomington, to the detriment of appellant in its division of through freight rates. The cross complaint prayed that the Alton be required to include the enumerated industries in its switching district. Extensive hearings were again held and a large volume of testimony and exhibits placed into evidence for appellant's now-stated purpose of showing that the circuit court and this court had been misinformed and misled concerning the determinative facts on which the previous court decisions were based.

The commission entered an order October 2, 1945, requiring appellant to restore its switching district as originally established, thus including the complaining industries, and further to fix a connecting line switching rate of not to exceed 14 cents per ton, minimum $2.97 per car, maximum $5.45 per car, which was then the prevailing switching rate of all railroads in Bloomington. The cross complaint against the Alton was dismissed.

Appellant filed a petition for rehearing on said order, which was granted on November 10, 1945, following the commission's denial of appellees' motion to strike the petition on the ground that it had not been filed within the time provided by law. Later, on December 4, 1946, the commission vacated its order granting a rehearing and struck appellant's petition from the record. On January 16, 1947, it again reversed itself and reinstated, then granted, the petition for rehearing. New hearings were held at which both appellant and appellees presented further testimony and appellant introduced a series of exhibits. December 11, 1947, the commission entered the order which is the subject of this appeal. It incorporated the above-described order of October 2, 1945, by reference, but specifically modified it, first to enable appellant to take advantage of state-wide freight increases which had been granted subsequent to October 2, 1945, and, second, to extend the time within which appellant could file its new schedule of tariffs.

Appellant followed by again appealing to the circuit court of McLean County. In that court appellees filed a motion to dismiss, first, because no petition for rehearing had been filed with the commission to the order of December 11, 1947, and, second, asserting that the petition for rehearing filed to the order of October 2, 1945, upon which appellant relied as establishing his right to appeal, had not been filed within thirty days after the service of that order, as required by statute. The trial court denied the motion to dismiss the appeal but, as previously pointed out, affirmed the commission's order of December 11, 1947, on its merits. Appearing in behalf of the commission, the Attorney General has filed his separate brief in this court alleging that the court erred in not granting the motion to dismiss the appeal.

Before entering into the switching and rate controversies in this cause, we must first consider the question of the trial court's jurisdiction to hear the appeal from the commission's last order. Appeals from orders of the Commerce Commission are purely statutory, and to become legally effective they must be prosecuted in accordance with the requirements of the statute. Brotherhood of Railroad Trainmen v. Elgin, Joliet and Eastern Railway Co., 382 Ill. 55, 46 N.E.2d 932; Village of Waynesville v. Pennsylvania Railroad Co., 354 Ill. 318, 188 N.E. 482. Section 67 of the Public Utilities Act (Ill.Rev.Stat.1947, chap. 111 2/3, par. 71), provides in part as follows: 'No appeal shall be allowed from any rule, regulation, order or decision of the Commission unless and until an application for a rehearing thereof shall first have been filed with and acted upon by the Commission. No person or corporation in any appeal...