Chicago & W.T. Rys., Inc. v. Illinois Commerce Comm'n

• Court: Illinois Supreme Court
• Writing for the Court: GUNN
• Citation: Chicago & W.T. Rys., Inc. v. Illinois Commerce Comm'n, 397 Ill. 460, 74 N.E.2d 804 (Ill. 1947)
• Decision Date: 18 September 1947
• Docket Number: No. 29710.,29710.
• Parties: CHICAGO & W. T. RYS., Inc., et al. v. ILLINOIS COMMERCE COMMISSION et al.

397 Ill. 460

74 N.E.2d 804

CHICAGO & W. T. RYS., Inc., et al.

v.ILLINOIS COMMERCE COMMISSION et al.

No. 29710.

Supreme Court of Illinois.

Sept. 18, 1947.

Appeal from Superior Court, Cook County; Ulysses S. Schwartz, judge.

Proceeding on an application of the Bluebird Coach Lines, Inc., filed with the Illinois Commerce Commission for a certificate of public convenience and necessity, opposed by Chicago & West Towns Railways, Inc., and another. On appeal to the circuit court, the order of the commerce commission granting the certificate was affirmed and Chicago & West Towns Railways, Inc., and another appeal.

Reversed and remanded with directions.Berthold L. Goldberg, of Chicago (Hyland J. Paullin, of Chicago, of counsel), for appellant Chicago & W. T. Rys., Inc.

Carroll H. Jones, of Chicago, for appellant Chicago Rapid Transit Co.

E. S. D. Butterfield, Halfpenny & Hahn, Daily, Dines, White & Fieduler, and Louis R. Gentili, all of Chicago (Richard F. Hahn and Francis L. Daily, both of Chicago, of counsel), for appellee Bluebird Coach Lines.

Joseph Lustfield, of Chicago, for appellee Town of Cicero.

Joseph E. Serhant, of Cicero, for appellee City of Berwyn.

GUNN, Justice.

The parties in this case are the same as the parties in the case of Chicago & West Towns Railways, Inc., v. Illinois Commerce Comm., 383 Ill. 20, 48 N.E.2d 320, 324. The appellants are the same as the appellants in that case, and Bluebird Coach Lines, Inc., is the same appellee as in that case. The former case was reversed and remanded to the circuit court of Cook county ‘with directions to remand the cause to the Commerce Commission, with instructions to take such additional testimony and make such additional findings as may be necessary and proper to determine the issues raised by appellants, in conformity with the views expressed herein.’

The issue raised in the former case was whether the Illinois Commerce Commission was justified in granting a certificate of convenience and necessity to the Blue Bird Coach Lines, Inc., and thus be allowed to invade the field of Chicago & West Towns as a competing carrier before it had been shown that the existing carrier was unable to adequately serve the public in the manner found necessary or convenient by the Commerce Commission. We held that before a competing carrier could be allowed to invade he field of the one who was established in the field, in rendering service, that the latter be shown to be unable to adequately perform the service as found necessary or convenient by the Commerce Commission.

Upon remandment considerable additional testimony was taken before the Commerce Commission and a number of findings made. It is unnecessary to consider all of these findings. Findigns Nos. 1, 2, 3, 4, 5, 6, 8, 10, 11 and 12 are all preliminary, and do not involve any issue in the case. Findings 13, 14 and 15 are descriptive of the lines of appellant Chicago Rapid Transit Company. Findings 17 to 29, inclusive, are identical with the findings 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 25, 27, and 28, contained in the first order of the commission, reviewed in 383 Ill. 20, 48 N.E.2d 320, 324, and need not be again considered. Finding No. 30, involving the Chicago, Burlington & Quincy Railroad Company, is not involved in this appeal. Findings 31 and 32 are descriptive of the service proposed by the petitioner, Bluebird Coach Lines, Inc. In fact, there is no substantial difference in the evidence or findings from those of the former hearing, except that findings 33 to 39, inclusive, describe the financial condition and operations of the appellant Chicago & West Towns Railways, Inc. from 1936 until 1943. And findings 41, 42 and 43 disclose the reasons given by the Commerce Commission for its order holding Chicago & West Towns is unable adequately and properly to perform the service proposed by Bluebird, allowing the appellee Bluebird Coach Lines, Inc., to operate as a competing carrier within the territory served by Chicago & West Towns Railways and Chicago Rapid Transit Company. Finding No. 7 shows that the Bluebird conducts all of its carrier operations into the heart of the Chicago ‘Loop District,’ where it has terminal facilities. So also does Chicago & West Towns, through transfer arrangement with Rapid Transit, authorized by a former order of the commission. 383 Ill. 20, 23, 48 N.E.2d 320. Finding No. 9 makes a general finding that the appellants cannot render the service which can be rendered by the Bluebird, for reasons pointed out later, having specific reference to findings 33 to 39 inclusive.

Findings 33 to 39, inclusive, are descriptive of the financial operations of the Chicago & West Towns since 1936 to the date of the hearing. The ultimate finding made by the commission was that bonds would be due in 1947 in the aggregate amount of $2,939,867, and that the Chicago & West Towns could not, during the two-and-one-half-year period, earn enough net profit to discharge and pay off these bonds, and that by reason of the financial condition the Chicago & West Towns is unable to adequately and properly perform the service proposed by the petitioner. This does not constitute a finding that at the date of the order, viz., June 14, 1945, the Chicago & West Towns was not able to render adequate service.

It is, of course, elementary that all of the facts passed upon and adjudicated upon the prior hearing of this case cannot be relitigated, and with that principle in mind we find that the only issue not settled in the former hearing is the financial ability of the Chicago & West Towns to render a similar service to that which appellee Bluebird proposes to render.

The commission finds that during the year 1943 there was earned by Chicago & West Towns a net profit of $278,773. The evidence in the record shows, without contradiction, although not specifically referred to in the findings of the commission, that for the full year 1943 Chicago & West Towns had a net profit of $377,433. It shows West Towns had paid all arrears of interest accruing during 1937, amounting to over $637,000, and that at the time of the entry of the order it was able to pay interest on it indebtedness as it matured, and that in addition it had spent over a million dollars in the purchase of motor coaches, and still had a substantial surplus.

We have been referred to no authority which authorizes the Commerce Commission to anticipate that the finances of a public utility in the future will be in such condition that...