Illinois Cent. R. Co. v. Illinois Commerce Comm'n

• Decision Date: 16 September 1947
• Docket Number: No. 30017.,30017.
• Citation: 397 Ill. 323,74 N.E.2d 545
• Parties: ILLINOIS CENT. R. CO. et al. v. ILLINOIS COMMERCE COMMISSION.
• Court: Illinois Supreme Court

397 Ill. 323

74 N.E.2d 545

ILLINOIS CENT. R. CO. et al.

v.ILLINOIS COMMERCE COMMISSION.

No. 30017.

Supreme Court of Illinois.

May 22, 1947.

As Modified on Denial of Rehearing Sept. 16, 1947.

Appeal from Circuit Court, Vermilion County; Ben F. Anderson, judge.

Proceeding by the Illinois Central Railroad Company and the Railway Express Agency, Inc., to review an order of the Illinois Commerce Commission denying petitioners' petition for permission to close an agency station. From a judgment setting aside the order, the commission appeals.

Affirmed.

George F. Barrett, Atty. Gen. (William C. Wines, Raymond S. Sarnow and James C. Murray, all of Chicago, and W. F. Gray, of Springfield, of counsel), for appellant.

William J. O'Brien, Jr., of Chicago (Vernon W. Foster, Charles A. Helsell, Joseph H. Wright and Meeks & Wise, all of Chicago, of counsel), for appellees.

THOMPSON, Justice.

This is an appeal from a judgment of the circuit court of Vermilion county which set aside an order of the Illinois Commerce Commission pertaining to the closing of an agency station at Armstrong, located on appellees' lines in Vermilion county. The proceedings originated by a petition filed with the commission pursuant to section 49a of the Public Utilities Act. (Ill.Rev.Stat. 1945, chap. 111 2/3, par. 49a.) The petition, filed by the Illinois Central Railroad Company and the Railway Express Agency, Inc., requested permission to close the agency station at Armstrong and make the same a prepay station. The commission denied the petition, and, upon review of the decision, the circuit court set aside the order of the commission and remanded the cause. The appeal to this court has been perfected by the commission from the judgment of the circuit court.

The petition filed with the commission set forth that the Illinois Central Railroad Company is a public utility and that the Railway Express Agency, Inc., in connection with the business of handling express by rail, was using the facilities of the railroadand the agency at Armstrong. The petition further alleged that the business being done at the Armstrong agency was slight and that the same could be handled at petitioners' agencies at Penfield and Potomac, without inconveniencing the public; and that public convenience and necessity did not require an agent at Armstrong to handle the business of petitioners and of the public with petitioners, and asked that this agency be made a prepay station.

The village of Armstrong is an unincorporated rural community, located on one of the lines operated by the Illinois Central Railroad Company in Vermilion county, with a population of approximately 275. It is four miles by rail west of Potomac and three and eight-tenths miles by rail east of Penfield. Agency stations were maintained at both of these points. It was proposed that these places handle the business now being handled at Armstrong. By highway, Armstrong is about four and one-half miles west of Potomac and about five and one-half miles east of Penfield. No passenger service is provided at Armstrong and freight trains are operated on an average of about one train every two days, no regular schedule being provided.

The evidence discloses that in the event the agency station at Armstrong is closed, the same service can be obtained either in Potomac or Penfield, and that telephone service is available between the three towns without toll charge. The evidence reveals there has been a steady decrease in business at the Armstrong agency the past three and one-half years; that for the first seven months of 1945 the Illinois Central received as its proportion the sum of $871.69, while the wages of the agent were $1167.68. Evidence produced by the petitioners discloses that the amount of business at Armstrong should not consume more than one hour of an agent's time per day. Only one witness was produced to oppose the petition requesting that the agency be discontinued. This witness testified that he lived one-half mile from Armstrong, was engaged in the general farm and livestock business, that his inbound shipments on livestock averaged from 9 to 14 carloads a year, and that not all of this was shipped by way of the Illinois Central Railroad Company to Armstrong. He further testified that in the event the agency should be removed from Armstrong, he would use the station at Ellis, as well as Penfield or Potomac. Witness testified that he could not state that there were any other shippers of liverstock by rail at Armstrong.

Appellant contends that the order of the commission is supported by the evidence and should be sustained. It is urged that the evidence is sufficient to support the order of the commission finding that in the interest of public necessity and convenience the agency station at Armstrong should be maintained. While it is true that courts will not substitute their judgment for that of the commission, we are bound to review the findings of the commission to determine whether there is substantial evidence to sustain the order of the commission. Lowden v. Illinois Commerce Comm., 376 Ill. 225, 33 N.E.2d 430.

The doctrine of convenience and necessity has been the subject of much judicial consideration. No set rule can be used as a yardstick and applied to all cases alike. This doctrine is a relative or elastic theory rather than an abstract or absolute rule. The facts in each case must be separately considered and from those facts it must be determined whether or not public convenience and necessity require a given service to be performed or dispensed with. The benefit, to one, of the abandonment must be weighed against the inconvenience and loss to which the other will thereby be subjected. We must consider the question as to whether the cost of maintaining the agency is out of proportion to the benefit to the public as a whole. The maintaining of an...