Egyptian Transp. Sys., Inc. v. Louisville & N.R. Co.

• Decision Date: 16 June 1926
• Docket Number: No. 17294.,17294.
• Citation: 152 N.E. 510,321 Ill. 580
• Court: Illinois Supreme Court
• Parties: EGYPTIAN TRANSP. SYSTEM, Inc., v. LOUISVILLE & N. R. CO. et al.

321 Ill. 580

152 N.E. 510

EGYPTIAN TRANSP. SYSTEM, Inc.,

v.LOUISVILLE & N. R. CO. et al.

No. 17294.

Supreme Court of Illinois.

June 16, 1926.

Proceeding by the Egyptian Transportation System, Inc., to secure a certificate of convenience and necessity for transportation of persons and property by bus, opposed by the Louisville & Nashville Railroad Company and others. From an order of the circuit court, confirming an order of the Commerce Commission granting a certificate, the Railroad Company and another appeal.

Reversed and remanded, with directions.

Appeal from Circuit Court, Washington County; J. F. Gillham, judge.

James A. Watts, H. H. Hosmer, and B. B. Holston, all of Nashville, and Charles P. Hamill, of Belleville, for appellant Louisville & N. R. Co.

J. Paul Carter, of Nashville, Charles E. Feirich, of Carbondale, and John G. Drennan, of Chicago (W. S. Horton, of Chicago, of counsel), for appellant Illinois Cent. R. Co.

E. M. Spiller, of Marion, and Gillespie & Gillespie, of Springfield, for appellee.

STONE, C. J.

This is an appeal from an order of the circuit court of Washington county confirming an order of the Illinois Commerce Commission granting a certificate of convenience and necessity to the Egyptian Transportation System, Inc., referred to in the record as a bus line, for the transportation of persons and property. The certificate covers five different routes-i. e., between Harrisburg and Shawneetown, between Johnston City, and Mt. Vernon, between Mt. Vernon and Nashville, between Centralia and Carbondale, and between Duquoin and Benton. The roads between these various cities or Villages are practically all hard-surface roads built by the state bond issue. Numerous interests filed objections to the granting of the certificate of convenience and necessity, but only the appellants, the Illinois Central Railroad Company and the Louisville & Nashville Railroad Company, bring the cause here for review.

The Louisville & Nashville complains that the proposed bus line between Mt. Vernon and Nashville, which is on route 15 of the state system of highways, parallels its railroad the entire distance, and between Harrisburg and Shawneetown, over road No. 13, parallels its railroad a portion of the way. The complaint of the Illinois Central Railroad Company is that between Centralia and Carbondale and Duquoin and Benton the proposed bus line parallels its right of way. It is urged that the issuance of such certificate of convenience and necessity will ruin the local business of these railroads.

The two appellant railroad companies have filed separate briefs, but the points of law raised are practically the same in each, the cases varying somewhat on the facts. Their contentions are, first, that they are now rendering adequate local service in the territory involved, and that there is therefore no proof of public convenience and necessity upon which to base the order granting such certificate; second, that the appellant railroad companies were entitled to notice of the application to the department of public works and buildings for permission to use the hard roads, with opportunity to appear and resist the same; third, the commissioners of highways in the territory affected are necessary parties to the proceeding before the commission; fourth, the consent given by the department of publicworks and buildings does not cover the carriage of property; and, fifth, since appellants are public utilities for the carriage of persons and property and are in the field, they are entitled to an opportunity to provide all necessary transportation before a competing utility is given a certificate.

[1][2] Concerning the first claim, i. e., that public convenience and necessity do not requie additional service in the territory affected, the evidence shows that the population of the territory from Marion north to Mt. Vernon, west to Ashley, south to Carbonadale and east to Marion, and that territory extending west from Ashley to Nashville and north to Centralia, is about 80,000. The distance from Marion to Mt. Vernon is about 41 miles, Mt. Vernon to Nashville about 25 miles, from Carbondale to Centralia 56 miles, and from Duquoin to Benton 19 miles, making a total mileage of 141 miles. The Egyptian Transfer Company already has in operation busses in additional territory in this community with a mileage of 80 miles. There is no suburban population in this district. The principal occupations of the people are agriculture and mining. Much evidence was taken pertaining to train service and the cost thereof. Schedules offered in evidence show that between Centralia and Carbondale the Illinois Central train service consisted of six trains each way per day, two of which were local trains, two limited or through trains, and two stopped at certain points between Centralia and Carbondale. It showed that the daily train schedule between Duquoin and Benton contained four trains each way, all of which were either local or stopped on flag or for through passengers. The Louisville & Nashville showed by its train schedules that it was operating five trains daily in each direction between Nashville and Mt. Vernon and two trains each way per day between Shawneetown and Eldorado.

Counsel for the bus company make the argument that the people of these districts are entitled to a two-hour service.Beyond the statement of the president of the bus company, who qualified as an expert in railroading, there is nothing in the record to indicate that there is any demand for a two-hour service in this territory. It is urged that the proximaity of this territory to St. Louis and the inability to get to that city from the territory affected shows the necessity for the service. This district, however, is not close to St. Louis. What constitutes public convenience and necessity is a matter not always easy to determine. One train each way per day met the demands a generation ago, but no one will contend that such would meet the needs of any community of average population to-day. While this district is not suburban territory and the occupations of the people do not make it appear that there is in this community a necessity for two-hour service, that is a matter primarily in the province of the Commerce Commission to determine, and the court is not authorized to substitute its judgment for that of the commission where there is any substantial basis in the evidence upon which to base a finding of such necessity. Commerce Com. v. Cleveland, Cincinnati, Chicago & St. Louis Railroad Co., 309 Ill. 165, 140 N. E. 868. We should not in this case set aside the order granting the certificate of convenience and necessity on that ground.

[4] It is urged that to refuse to give appellants the right to appear before the department of public works and buildings and contest the issuance of a permit by that department to use the hard road for a bus line was a denial of due process of law. Paragraph 277 of the Road and Bridge Act (Smith's Stat. 1925, p. 2243), provides that ‘no public utility company or person shall be granted any right, privilege, or franchise in, on, or along any such highway without the consent of said department of public works and buildings.’ We are unable to see wherein appellants' property rights are taken away by the consent of the department of public works and buildings. Appellants have no property rights in the hard road. The Legislature has power to delegateits control over roadways of the state to administrative boards. Black on Const. Law, § 55. Assuming that appellants have a right...