Chicago & N. W. Ry. Co. v. Illinois Commerce Commission

• Decision Date: 13 October 1970
• Docket Number: Gen. No. 54817
• Citation: 130 Ill.App.2d 352,264 N.E.2d 745
• Parties: CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Plaintiff-Appellee, v. ILLINOIS COMMERCE COMMISSION and the Attorney General of the State of Illinois, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 745

264 N.E.2d 745

130 Ill.App.2d 352

CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Plaintiff-Appellee, v. ILLINOIS COMMERCE COMMISSION and the Attorney General of the State of Illinois, Defendants-Appellants.

Gen. No. 54817.

Appellate Court of Illinois, First District, Second Division.

Oct. 13, 1970.

William J. Scott, Atty. Gen., Peter A. Fasseas, Edward G. Finnegan, Asst. Attys. Gen., Chicago, for defendant-appellants.

Richard M. Freeman, Edward Warden, Chicago, for plaintiff-appellee.

McCORMICK, Presiding Justice.

On February 4, 1969, the plaintiff, Chicago and North Western Railway Company (hereafter referred to as the Railroad), filed a complaint seeking injunctive relief and a declaration that section 27(c) of the Public Utilities Act (Ill.Rev.Stat.1969, ch. 111 2/3, § 27(c)) does not confer jurisdiction on the Illinois Commerce Commission to control the Railroad's sale, transfer, lease, mortgage, or other disposition of real estate in Illinois if such disposition was neither necessary nor useful to the public. The Railroad also sought to restrain the defendants from enforcing section 27 of the Act. ^*

The Attorney General filed a motion to dismiss the complaint and the Railroad then made a motion for summary judgment. The Circuit Court denied the Attorney General's motion to dismiss and granted the Railroad's motion for summary decree. The court found that section 27 of the Act did not apply to real estate and provided no standards; therefore, was in violation of Article 3 of the Constitution of the State of Illinois, S.H.A. The defendants were enjoined from enforcing or attempting to enforce section 27 of the Act.

On June 30, 1969, the defendants filed a notice of appeal to the Supreme Court of Illinois, and on January 21, 1970, the Supreme Court transferred the case to the Appellate Court of Illinois on the ground that it had no jurisdiction on direct appeal. The basis of the direct appeal was that the case involved questions arising under the Constitutions of the United States and of the State of Illinois. (Supreme Court Rule 302(a)(2), Ill.Rev.Stat.1969, c. 110A, § 302(a)(2).)

The first question to be decided in this court is the import of the order of transfer as it concerns the constitutional issues raised by the litigants. In Sarelas v. Illinois Bell Tel. Co., 42 Ill.App.2d 372, 192 N.E.2d 451, the plaintiff filed a direct appeal to the Illinois Supreme Court. The case was transferred to the Appellate Court, and in its opinion this court said at page 374, 192 N.E.2d at page 452:

'In his brief filed there he set forth eight separate grounds involving constitutional questions. The cause was transferred without opinion by the Supreme Court, but implicit in its transfer order is a rejection of plaintiff's constitutional arguments and a holding that there are no debatable constitutional questions involved in the case.'

The Sarelas case was cited in Barnes v. Peoples Gas Light & Coke Co., 103 Ill.App.2d 425, where the court said at 427, 243 N.E.2d 855, at 856:

'The appeal was taken to the Supreme Court which transferred it to this court without comment, thus disposing of a claim by plaintiff that the orders referred to had deprived him of constitutional rights because of his color.'

After both Sarelas and Barnes had been transferred, the Appellate Court treated the issues as having been disposed of; consequently, in neither case was any further reference made to the alleged constitutional questions.

In People v. Valentine, 60 Ill.App.2d 339, this court noted at page 348, 208 N.E.2d 595, at page 600, that the then existing rule was

'* * * if a case in which constitutional questions were raised was transferred to this court, it was presumed that the Supreme Court had determined that the constitutional questions were not genuine or that the questions were not material to the disposition of the appeal. (Citing cases.) There now must be an extension of this rule because of the possible alternative presumption that the constitutional questions are deemed well settled by the prior decisions of the court.'

We cannot hold that such a transfer is an adjudication by the Supreme Court on the merits of the constitutional issues.

In the instant case the Circuit Court accepted the plaintiff's view of the manner in which section 27 of the Public Utilities Act should be interpreted, and therefore entered judgment for the plaintiff. On the direct appeal to the Supreme Court, several constitutional issues are raised by the plaintiff regarding its assertions of the invalidity of the section under review, but the Railroad also urges its view of the proper statutory construction of the Act. Constitutional issues are not reached in a case unless necessary to its disposition.

In People ex rel. Milos v. Kutschke, 42 Ill.2d 405, the Supreme Court said at page 407, 247 N.E.2d 423, at page 424:

'In addition to the constitutional questions which constitute the major argument here, plaintiffs urge the conversion proceedings were invalid because of failure to comply with the notice and publication requirements * * * We agree, and for this reason do not reach the constitutional questions, since it is our established rule that constitutional questions will not be considered unless necessary to the disposition of the case. In re Estate of Ersch, 29 Ill.2d 572, 577, 195 N.E.2d 149, and cases there cited.'

In the case before us it is possible that the Supreme Court transferred it because there existed the possibility that constitutional questions might never be reached. If this court were to accept plaintiff's argument on statutory construction, there would be no necessity for considering the constitutional questions. This view treats the transfer as an abstention from taking the case to avoid considering the constitutional arguments since they may prove unnecessary to resolve the appeal.

Although in the present case one constitutional issue was passed upon by the lower court, the case had already been disposed of on a non-constitutional ground. Whether such an unnecessary constitutional ruling can confer direct appeal jurisdiction is at least questionable. In People ex rel. Templeton v. Board of Education, etc., 399 Ill. 204, the court stated at page 210, 77 N.E.2d 200, at page 203:

'The established rule, which needs no citation of authorities, is that to warrant a direct appeal on the ground that a constitutional question is involved, the record must affirmatively disclose that the constitutional question was not only presented in the trial court for decision, but was passed upon by it, and that even though the constitutional question was raised in the trial court, if a final judgment was rendered on other issues, no constitutional question is presented for review on appeal to this court.'

The City of Watseka v. Wilson, 11 Ill.2d 265, 142 N.E.2d 24, was another case in which the trial judge ruled on the basis of statutory construction and not on the constitutionality of the particular statute. A direct appeal was sought in the Supreme Court. In transferring the case to the Appellate Court the Supreme Court said, at page 267, 142 N.E.2d at page 25, concerning jurisdiction in direct appeal:

'That jurisdiction does not exist even if, as here, a constitutional question was raised in the trial court, if the judgment was based on other issues. (Citing cases.) 'A constitutional question is not so presented as to give this court jurisdiction on direct appeal simply because a judgment or decree might have been entered that would have given appellants a right to rely on a constitutional question on appeal.' (People ex rel. Templeton v. Board of Education, 399 Ill. 204, 211, 77 N.E.2d 200; Hawley Products Co. v. May, 377 Ill. 506, 509, 37 N.E.2d 167; see also People ex rel. Kurtz v. Meyer, 328 Ill. 122, 124--125, 159 N.E. 205.)'

See also Interstate Bakeries Corp. v. Bakery, Cracker, Pie and Yeast Wagon Drivers Union, Local 734, etc., Teamsters, 31 Ill.2d 317, 319, 201 N.E.2d 452; Beatrice Foods Co. v. Lyons, 12 Ill.2d 274, 283, 146 N.E.2d 68.

In First Nat. Bank & Trust Co. v. Evanston, 30 Ill.2d 479, 197 N.E.2d 705, the Supreme Court transferred a zoning case to the Appellate Court on the ground that no substantial question arising under the Constitution was presented. The Supreme Court acknowledged (at page 483, 197 N.E.2d at page 707) that the 'ultimate issues to be determined in a typical zoning case are constitutional--* * *' but in effect read the element of substantiality into the constitutional provision for direct appeals to the Supreme Court in cases involving a question arising under the Constitution of the United States or of this State. It can hardly be said, then, that the Supreme Court's transfer of a zoning case to the Appellate Court serves as an indication that the constitutional issues are frivolous, irrelevant or well-settled. Rather, it serves as an indication that the case presents no 'novel and substantial constitutional issues of concern to every community in the State' (page 486, 197 N.E.2d page 709). It is further said at page 486, 197 N.E.2d at page 709 that 'the question of the authority of the municipality to apply the questioned provision of the ordinance to the particular property involved can be determined, as well as the reasonableness of the ordinance when so applied, and if warranted, there may be further review in this (Supreme) court.'

There is no reason for distinguishing between transfers in zoning cases and in other cases; consequently, we believe it would be improper to presume any substantive ruling by the Supreme Court from the mere fact of a transfer which provides no instructions and says nothing more than that in the Supreme Court's opinion no direct appeal jurisdiction existed. We must disagree with the statement in Sarelas v. Illinois Bell Tel. Co., Supra, that 'implicit in its (Supreme Court's) transfer order is a rejection of plaintiff's constitutional arguments...