Chicago Dist. Pipeline Co. v. Illinois Commerce Comm'n

• Decision Date: 09 October 1935
• Docket Number: No. 23024.,23024.
• Citation: 361 Ill. 296,197 N.E. 873
• Parties: CHICAGO DISTRICT PIPELINE CO. v. ILLINOIS COMMERCE COMMISSION.
• Court: Illinois Supreme Court

361 Ill. 296

197 N.E. 873

CHICAGO DISTRICT PIPELINE CO.

v.ILLINOIS COMMERCE COMMISSION.

No. 23024.

Supreme Court of Illinois.

June 14, 1935.

Rehearing Denied Oct. 9, 1935.

The Chicago District Pipeline Company filed a petition with the Illinois Commerce Commission for a certificate of convenience and necessity to operate and maintain gas lines for sale of gas at wholesale to privately-owned public utilities located in certain counties, and the village of Hinsdale filing an intervening petition. From a judgment reversing an order of the commission permitting the filing of the intervening petition and granting a restricted certificate of convenience and necessity, the commission appeals.

Affirmed.Appeal from Superior Court, Cook County; Charles A. Williams, judge.

Otto Kerner, Atty. Gen. (Irvin Rooks, Robert H. Farrell, and Eugene L. Cohn, all of Chicago, of counsel), for appellant.

Cooke, Sullivan & Ricks, and Wilson & McIlvaine, all of Chicago (George A. Cooke, F. L. Daily, and J. T. Mullaney, all of Chicago, and J. E. Alschuler, of Aurora, of counsel), for appellee.

ORR, Justice.

A certificate of public convenience and necessity was granted in 1933 by the Illinois Commerce Commission, appellant, to the Chicago District Pipeline Company, appellee. The order of the commission permitted appellee to maintain and operate two gas pipe lines owned by it upon condition that it would convey, deliver, and sell gas at wholesale to corporations, both municipal and private, engaged in the sale and delivery of gas to the public. From this order appellee perfected its appeal to the superior court of Cook county, which upon consideration vacated and set aside the order of the commission. By this direct appeal the judgment of the superior court is assailed as erroneous.

The chief controversy hinges about the restrictive condition imposed upon appellee in the commission's order. Appellee's petition only asked for leave to sell gas at wholesale to privately-owned public utility companies located along its pipe lines in La Salle, Grundy, Kendall, and Will counties. By an amendment appellee also asked for consent and approval of a contract with the Public Service Company of Northern Illinois for the purchase of the latter's 20-inch pipe line extending from a point in Cicero to the city limits of Chicago. These were the issues presented to the commission which it took for determination upon exhibits and testimony produced at the hearing. No issue was raised and no evidence was heard as to any proposed sale of gas to any municipal corporation.

Two weeks after the cause had been submitted to the commission and marked ‘heard and taken,’ the village of Hinsdale presented its petition asking leave to intervene in the cause. The petition recited, among other things, that it was a municipal corporation authorized by the laws of this state to acquire, own, and operate a distribution system for the supply of gas to its inhabitants; that it was situated within relatively close proximity to one of appellee's pipe lines; and that in case such village acquired a gas distribution system, its situation would make feasible a connection with appellee's pipe line, through which a supply of gas might be obtained. The petition urged that no certificate of convenience and necessity to granted to appellee until its supply of gas was made available for purchase at wholesale, not only by public utility companies, but also by any municipality which might qualify itself to own and operate a gas distribution system. The prayer of the petition for leave to intervene was granted, together with leave to argue the case orally and file written briefs.

The superior court did not err in holding that the village of Hinsdale was improperly permitted to intervene and become a party to the proceeding before the commission.The disputed clause in the commission's order undoubtedly arose from such intervention, as no issue of the right of municipalities to buy gas for public distribution had previously been raised. The village of Hinsdale was not a party to the proceeding and appeared only as a possible future owner of a gas distribution system. It offered no evidence of any kind. Nothing in the record shows that it now owns, in the past has ever owned, or has any plan or prospect of owning in the future a municipal gas system. Its petition to intervene stated its interest to be ‘in case it acquires a gas-distribution system.’ This recital gave it no present right to complain or intervene. Public Utilities Comm. v. Marseilles Land & Water Power Co., 295 Ill. 522, 129 N. E. 113. Its statutory right to acquire a gas distribution system at some future time, if its inhabitants then desire it, was insufficient to confer upon it any interest in the pending proceeding. Whatever interest it possessed was altogether remote, expectant, and contingent. Under these circumstances, the Commerce Commission exceeded its powers in entering an order not based upon any petition of the parties properly before it and wholly unsupported by any evidence heard or taken. Alton & Southern Railroad v. Illinois Commerce Comm., 316 Ill. 625, 147 N. E. 417;Public Utilities Comm. v. City of Dixon, 292 Ill. 521, 127 N. E. 143;State of Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U. S. 510, 32 S. Ct. 535, 56 L. Ed. 863.

The order entered by the commission was predicated upon the assumption that appellee, as a public utility, could not limit the scope of its public engagement to the sale of gas to other privately owned public utility companies, and thus, in effect, discriminate against municipal corporations. On this point it reasoned that once a public utility dedicates its property to a public use it thereafter becomes affected with a public interest and thus ‘subject to comprehensive regulation by the state.’ The principle of state regulation of all public utilities is well enough established, but in Illinois its application has never been extended to permit such unlimited or so-called ‘comprehensive’ regulation as was attempted in this case. We have held privately-owned business is clothed with a public use only to the extent that it may be formed to deal with a particular class of patrons (People v. Ricketts, 248 Ill. 428, 94 N. E. 71), or to the extent of the interest created (Austin Bros. Transfer Co. v. Bloom, 316 Ill. 435, 147 N. E. 387) or held out for that purpose. State Public Utilities Comm. v. Monarch Refrigerating Co., 267 Ill. 528, 108 N. E. 716, Ann. Cas. 1916A, 528. In the case at bar appellee's public engagement extended only to the supply of gas at wholesale to all public utilities...