Brink's, Inc. v. Illinois Commerce Commission

• Decision Date: 31 December 1981
• Docket Number: No. 80-2892,80-2892
• Citation: 103 Ill.App.3d 851,431 N.E.2d 1242,59 Ill.Dec. 485
• Parties: , 59 Ill.Dec. 485 BRINK'S, INCORPORATED, Purolator Security, Incorporated, and Purolator Courier Corporation, Plaintiffs-Appellees, v. The ILLINOIS COMMERCE COMMISSION, Defendant-Appellant, Wells Fargo Armored Service Corporation, Intervening Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1242

431 N.E.2d 1242

103 Ill.App.3d 851, 59 Ill.Dec. 485

BRINK'S, INCORPORATED, Purolator Security, Incorporated, and Purolator Courier Corporation, Plaintiffs-Appellees, v. The ILLINOIS COMMERCE COMMISSION, Defendant-Appellant Wells Fargo Armored Service Corporation, Intervening Defendant-Appellant.

No. 80-2892.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 31, 1981.

Rehearing Denied March 4, 1982.

Tyrone C. Fahner, Atty. Gen., Hercules F. Bolos, Sp. Asst. Atty. Gen. Chief Counsel, Ill. Commerce Com., Mary C. Ubatuba, Thomas J. Russell, Asst. Attys. Gen., Chicago, for defendant-appellant.

Arvey, Hodes, Costello & Burman, Howard Arvey, Nathan M. Cohen, Charles J. O'Connor and Donald F. Spak, Chicago, and David E. Wells, Atlanta, Ga., for Wells Fargo Armored Service Corp., intervening defendant-appellant.

Thomas G. Lyons, Daniel W. Coyne, Patrick L. Moore of O'Keefe, Ashenden, Lyons & Ward, Chicago, for Brink's Inc., plaintiff-appellee.

Thomas J. Heneghan, of Rock, Fusco, Reynolds & Heneghan, and Michael F. Sheehan, Jr., of Deming & Sheehan, Chicago, for Purolator Sec., Inc., plaintiff-appellee.

JOHNSON, Justice:

Appellants, Illinois Commerce Commission (Commission) and Wells Fargo Armored Service Corporation (Wells Fargo), appeal the decision of the circuit court of Cook County setting aside a Commission order granting a contract carrier permit to Wells Fargo.

On June 18, 1976, Wells Fargo applied to the Commission for a permit under section 18-302 of the Illinois Motor Carrier of Property Law (Ill.Rev.Stat.1975, ch. 951/2, par. 18-302) to operate as a contract carrier of valuable property in armored vehicles in Cook, Lake, DuPage and Will Counties. Pursuant to Commission rule, six existing carriers were allowed to intervene and those intervening included Brink's, Incorporated (Brink's), Purolator Security, Incorporated, and Purolator Courier Corporation.

Hearings were held during 1976, 1977 and 1978, generating over 7000 pages of transcript. The record was marked "heard and taken" on February 9, 1978. The full Commission considered oral arguments on September 27, 1978. On May 16, 1979, the Commission granted the application and issued a contract carrier permit to Wells Fargo. Brink's and Purolator Security appealed to the circuit court of Cook County and requested a stay of the Commission's order. The stay was allowed and the stay order was affirmed on appeal. (Brink's, Inc. v. Illinois Commerce Com. (1979), 79 Ill.App.3d 275, 34 Ill.Dec. 621, 398 N.E.2d 296.) On October 17, 1980, the circuit court set aside the order of the Commission for the reasons set forth in its decision on review. Wells Fargo and the Commission appealed.

Appellants present the following issues for review: (1) whether prior to issuing a contract carrier permit, section 18-302 of the Illinois Motor Carrier of Property Law (Ill.Rev.Stat.1977, ch. 951/2, par. 18-302) requires the Commission to make express findings concerning (a) unmet shipper needs for carrier service and (b) the inadequacy of existing service; (2) whether the Commission's order contains findings concerning shipper needs for armored carrier services; (3) whether the trial court erred in taking judicial notice of matters outside the Commission's certified record, over objection, without an opportunity for rebuttal, and in disregard of evidence of record; (4) whether the Commission's order is lawful and reasonable; and (5) whether Brink's and Purolator have standing to appeal the Commission's order.

We reverse.

LAW OF COMMON AND CONTRACT CARRIERS

Before discussing the issues raised by this appeal, it is appropriate that we discuss the definitions and law of common and contract carriers.

A contract carrier is defined as "any person who under individual written bilateral contracts, transports property over the highways of this State by motor vehicle for-hire." (Emphasis added.) (Ill.Rev.Stat.1977, ch. 951/2, par. 18-100(10).) This contrasts with the definition of common carrier which is "any person who undertakes to transport property over the highways of this State for the general public by motor vehicle for-hire, whether over regular or irregular routes." (Emphasis added.) Ill.Rev.Stat.1977, ch. 951/2, par. 18-100(9).

Common carriers serve the needs of the general public. They are prohibited from unjustly discriminating or establishing undue or unreasonable preferences to any person, place, or "description of traffic." (Ill.Rev.Stat.1977, ch. 951/2, par. 18-313.) Their rates must be just and reasonable (Ill.Rev.Stat.1977, ch. 951/2, par. 18-310), and a schedule of those rates must be filed with the Commission (Ill.Rev.Stat.1977, ch. 951/2, par. 18-501). Finally, common carriers must carry insurance to protect shippers from loss or damage to cargo. (Ill.Rev.Stat.1977, ch. 951/2, par. 18-701.) In contrast, contract carriers serve particular types of shippers and are not required to serve the general public. They are not bound by the prohibition against discrimination and preferences in rates and are not required to carry insurance on cargo. In short, the individual contract determines the relationship between a contract carrier and its shipper. Allied Delivery System, Inc. v. Illinois Commerce Com. (1981), 93 Ill.App.3d 656, 659, 49 Ill.Dec. 87, 90, 417 N.E.2d 777, 779-80.

Different standards govern the issuance of certificates to common carriers and permits to contract carriers. The standard for issuance of certificates to common carriers is public convenience and necessity. Section 18-301 provides in pertinent part that:

"(a) * * * (I)t shall be unlawful for any common carrier of property by motor vehicle to operate * * * without first having obtained from the Commission a certificate * * * declaring that public convenience and necessity require such operation. The Commission shall issue a certificate to any qualified applicant therefor after hearing, pursuant to an application filed, authorizing the whole or any part of the operation covered by the application, and may attach to the exercise of the rights and privileges granted by such certificate such terms and conditions as the public convenience and necessity may require, if it is found that the applicant is fit, willing and able properly to perform the service proposed and to conform to provisions of this Chapter and the requirements, rules and regulations of the Commission thereunder, and that the proposed service, to the extent authorized by the certificate, is required by the present and future public convenience and necessity ; otherwise such application shall be denied. In determining whether or not a certificate of public convenience and necessity shall be issued, the Commission shall give due consideration among other factors as to whether or not the granting of the authority of the proposed service would recognize and preserve the inherent advantages of, and foster sound economic conditions in, such transportation and among such carriers in the public interest, and whether or not the granting of the authority for the proposed service would tend to promote safe, adequate, economical and efficient service by motor carriers of property for-hire, provided however, that the mere existence of a competing transportation service in the area sought to be served shall not in and of itself be proof sufficient to support a denial of the existence of the present or future public necessity and convenience. The order of the Commission granting or denying a certificate shall set forth the specific findings of fact on which such order is based." (Emphasis added.) Ill.Rev.Stat.1977, ch. 951/2, par. 18-301.

In McMann v. Illinois Commerce Com. (1967), 38 Ill.2d 126, 230 N.E.2d 197, our supreme court held that a finding of inadequate existing service was not essential to a Commission order granting a certificate of public convenience and necessity. In McMann, Springfield Van and Storage Co. had filed for a certificate to operate as a common carrier of household goods and used office furniture and equipment. The Commission granted the certificate finding the operation consistent with the public interest and that there was a present and future need for the proposed services. Plaintiffs, who had intervened to oppose the application, argued that such a grant of authority required a specific finding of inadequacy of existing service. In affirming the Commission order, our supreme court stated:

"The requirement of a Commission finding that existing service is inadequate was developed in those cases where existing carriers or utilities have been held to be entitled to territorial protection under the so-called 'first in the field' doctrine. (Citations.) This theory is based on a consideration of the time and money expended by the pioneer in developing its business and rendering adequate service to the public. (Citations.)

Cases requiring specific findings of inadequacy involved common carriers over regular routes only or utilities confined to a definite area such as electric, gas, water or sewer service. The authority here sought is to provide service over irregular routes all over the State of Illinois. Plaintiffs have not cited nor have we found any case involving common carriers over irregular routes wherein a failure to make the specific finding of inadequacy of service by existing carriers resulted in a reversal of a Commission order. * * * The Commission did make a specific finding in its original order that the greater weight of the evidence established that other carriers in the same territory were unable to meet the public demand for such services, and in its order on rehearing it made a finding of need for additional service which implies an inadequacy of existing service. We do not think that the failure to make a specific finding of inadequacy was fatal to the Commission's order. " McMann, at 128-29, 230 N.E.2d 197.

The standard for the issuance of permits to...