Illinois Cent. R. Co. v. Franklin Cnty.

• Decision Date: 19 September 1944
• Docket Number: No. 27876.,27876.
• Citation: 387 Ill. 301,56 N.E.2d 775
• Parties: ILLINOIS CENT. R. CO. v. FRANKLIN COUNTY et al.
• Court: Illinois Supreme Court

387 Ill. 301

56 N.E.2d 775

ILLINOIS CENT. R. CO.

v.FRANKLIN COUNTY et al.

No. 27876.

Supreme Court of Illinois.

Sept. 19, 1944.

Proceeding by the Illinois Central Railroad Company before the Illinois Commerce Commission for an order to require the County of Franklin and others to renew and improve or, in the alternative, to abandon two overhead highway bridges over petitioner's main track. The Commerce Commission found that the renewal of one of such bridges was not warranted, but that public convenience and necessity required the renewal of the other bridge and it apportioned the cost thereof between the county and petitioner. From a judgment of the circuit court setting aside such order of the Commerce Commission, the petitioner appeals.

Judgment of the Circuit Court reversed and order of the Commission confirmed.Appeal from Circuit Court, Franklin County; W. Joe Hill, judge.

Joseph H. Wright, of Chicago (Vernon W. Foster and Charles A. Helsell, both of Chicago, of counsel), for appellant.

Leonard J. Dunn, State's Atty., of West Frankfort, for appellee.

SMITH, Justice.

This is an appeal from a judgment of the circuit court of Franklin county, setting aside an order of the Illinois Commerce Commission.

The cause originated with the filing of a petition by appellant in which it sought an order requiring the renewal and improvement, or, in the alternative, the abandonment, of two overhead highway bridges extending over and across its main track in Franklin county. One of said bridges is located at a point where State Aid Road No. 3 crosses said railroad. This bridge is designated in the record made before the commission as U-64-5. The other bridge mentioned in the petition is located at a point where State Aid Road No. 7 crosses appellant's railroad. This bridge is referred to in the record as U-65-8. After a hearing in which both appellant and appellee participated, the commission found that the volume of traffic and other conditions were such that it was not warranted in ordering a renewal of bridge U-65-8, at that time.

As to bridge U-64-5, the commission found that the public convenience and necessity required its renewal. It further found that the cost of such renewal should be apportioned one half to appellant and one half to appellee. By its order, appellant was directed to cause said bridge U-64-5 to be renewed within six months from the date of the service of the order. Such renewal to be in accordance with the plans and blueprints attached to the petition, and, by reference, made a part of the order. Appellee was required and directed to furnish to appellant, within thirty days from the date of the service of the order, satisfactory proof of its intention to assume and pay that part of the cost apportioned to it. It was further ordered that the share of the cost apportioned to appellee should not exceed the sum of $3000, which was found to be one-half of the estimated cost of the renewal of the bridge.

On petition of appellee a rehearing was granted. Additional evidence was heard, and on June 2, 1942, a supplemental order was entered. By this supplemental order the commission again found that there was no pronounced necessity for retaining bridge U-65-8. By this order it directed appellant to make the necessary repairs to bridge U-65-8 and thereafter to maintain the same until the further order of the commission. That portion of its order is not involved on this appeal.

The commission further found that the public safety, convenience and necessity required the renewal of bridge U-64-5. It ordered the reconstruction thereof by appellant, which, the order recited ‘should be considered as a renewal thereof.’ The commission estimated the cost at $6000. It ordered such cost apportioned, 60 per cent to appellant and 40 per cent to appellee, and provided that the share of the cost apportioned to appellee should not be in excess of $2400. It contained a like provision as that contained in the former order requiring appellee to furnish satisfactory proof of its intention to assume and pay the share of the cost apportioned to it.

Appellee perfected and appeal to the circuit court of Franklin county for the purpose of reviewing said supplemental order entered on June 2, 1942. Upon a hearing that court set aside the order of the commission. This appeal has been perfected by appellant to review that judgment.

The only question here in dispute is the lawfulness and reasonableness of the order apportioning the cost between appellant and appellee. Appellant contends that this apportionment was a lawful exercise of the police power delegated to the commission by section 58 of the Public Utilities Act. Ill.Rev.Stat.1943, chap. 111 2/3, par. 62. It further contends that such apportionment was lawful and was neither arbitrary nor unreasonable. For this reason it insists that the circuit court erroneously reversed and set aside the order of the commission.

Appellee contends that the commission was without power to apportion the cost between appellant and appellee. Its position is that section 58 of the Public Utilities Act does not confer upon the commission the power or authority to apportion the cost of repair, reconstruction, or improvement of an existing overhead highway crossing over a railroad; that all such costs should be borne by the railroad company, under section 8 of an act in relation to the fencing and operation of railroads. Ill.Rev.Stat.1943, chap. 114, par. 62. The basis for this contention is a proviso contained in said section 58. This contention necessitates a construction of that section of the Public Utilities Act.

As originally enacted in 1913, section 58 contained only two paragraphs. Laws of 1913, p. 489. That section, as then enacted, read as follows:

‘No public road, highway or street shall hereafter be constructed across the track of any railroad company at grade, nor shall the track of any railroad company be constructed across a public road, highway or street at grade nor shall the track of any railroad company be constructed across the track of any other railroad or street railroad company at grade, nor shall the track of a street railroad company be constructed across the track of a railroad company at grade, without having first secured the permission of the commission: Provided, that this section shall not apply to the replacement of lawfully existing roads, highways and tracks. The commission shall have the right to refuse its permission or to grant it upon such terms and conditions as it may prescribe. The commission shall have power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use and protection of each such grade crossing.

‘The commission shall also have power, after a hearing, to alter or abolish any grade crossing, heretofore or hereafter established, when in its opinion the public safety requires such alteration or abolition, or to require a separation of grades at any such crossing; and to prescribe, after a hearing of the parties, the terms upon which such separation shall be made and the proportions in which the expense of the alteration or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad companies affected or between such companies and the State, county, municipality or other public authority in interest.’

It will be noted that by the first paragraph of the section, as enacted in 1913, it was provided that no public road, highway or street shall be constructed across the track of any railroad company, nor the track of any railroad company constructed across a public road, highway or street, without first obtaining permission from the commission. This language is followed by the proviso relied upon, which reads: ‘Provided, that this section shall not apply to the replacement of lawfully existing roads, highways and tracks.’ The first paragraph of said section then concludes by conferring power upon the commission to refuse such permission or to impose such terms and conditions as it may prescribe.

The second paragraph of section 58, as originally enacted, conferred upon the commission the power to alter or abolish any grade crossing, theretofore or thereafter established, when in its opinion the public safety requires. The commission was further empowered to require a separation of grades at such crossings. It was further empowered to prescribe the terms upon which such grade separations shall be made and the proportion in which the expense of the alteration or abolition of such crossings or the separation of such grades, shall be divided between the railroad companies affected, or between such companies and the State, county, municipality or other public authority in interest.

An analysis of the language of section 58, as it then existed, demonstrates that the only purpose of the proviso, and its only effect, was to render it unnecessary to procure the permission of the commission for the replacement of lawfully existing roads, highways and tracks. The proviso in no way limited the jurisdiction or powers conferred upon the commission, either by section 58 or by other provisions of the act.

In 1917, section 58 was amended by adding thereto several additional paragraphs. Laws of 1917, p. 644. The two paragraphs of section 58, as enacted in 1913, were set out at length, as paragraphs one and two, in the amended section, with only minor changes. In so far as this case is concerned, such changes are immaterial. These paragraphs were then followed by the added paragraphs contained in the section, as amended. No subsequent changes have been made in the provisions applicable to the questions here involved.

The first paragraph added to the language of the section by the 1917 amendment, reads as follows:

‘The commission shall also have power by its order to require the reconstruction, alteration,...