Illinois Commerce Comm'n v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 18 February 1926
• Docket Number: No. 16254.,16254.
• Citation: Illinois Commerce Comm'n v. Cleveland, C., C. & St. L. Ry. Co., 320 Ill. 214, 150 N.E. 678 (Ill. 1926)
• Court: Illinois Supreme Court
• Parties: ILLINOIS COMMERCE COMMISSION v. CLEVELAND, C., C. & ST. L. RY. CO.

320 Ill. 214

150 N.E. 678

ILLINOIS COMMERCE COMMISSION

v.CLEVELAND, C., C. & ST. L. RY. CO.

No. 16254.

Supreme Court of Illinois.

Feb. 18, 1926.

The Danville Brick Company applied to the Illinois Commerce Commission for a reduction of a freight rate charged by, and for reparation of excess charges of, the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From the order of the Commission, as affirmed by the circuit court, the company appeals.

Reversed, and order set aside.

Thompson and Heard, JJ., dissenting.Appeal from Circuit Court, Vermilion County; Augustus A. Partlow, judge.

Rearick & Meeks, of Danville, and D. P. Connell and L. P. Day, both of Chicago (L. J. Hackney, of Cincinnati, Ohio, of counsel), for appellant.

Clarence B. Cardy, of Chicago (Isham, Lincoln & Beale, of Chicago, of counsel), for appellee Danville Brick Co.

Oscar E. Carlstrom, Atty. Gen., and Albert D. Rodenberg, of Springfield (H. E. Wood, of Joliet, of counsel), for appellee Commerce Commission.

DUNN, C. J.

The circuit court of Vermilion county affirmed an order of the Illinois Commerce Commission requiring the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to establish a rate of 29 cents a ton for the transportation of bituminous coal in Vermilion county from Mission mine No. 1 of the United Electric Coal Companies to the plant of the Danville Brick Company, and file with the commission, within 60 days, a verified statement as to the amount of reparation due on all shipments of bituminous coal from Mission mine No. 1 to the plant of the brick company in accordance with the findings of the commission, and the railroad company has appealed.

The order was entered after a hearing upon a complaint filed by the Danville Brick Company, charging that the rates exacted by the railroad company from the brick company since September 1, 1920, have been excessive, unreasonable, and unjust, and praying for the establishment of a just, reasonable, and non-discriminatory rate, and for reparation for excess charges.

The Peoria division of the railroad company runs west from Danville and the Cairo division south. The plant of the brick company is on the Cairo division, about one-half mile south of its junction with the Peoria division. Mission mine No. 1 is on the Peoria division, about 4 1/2 or 5 miles west of the junction with the Cairo division. South of the plant of the brick company is the Lyons yard of the Cairo division, and between the junction and Mission mine No. 1 is the Hillary yard of the Peoria division. The plant of the brick company is within the Danville switching district, the western limit of which is the Hillary yard. Mission mine No. 1 is 2 miles west of the Hillary yard. The rate charged for the transportation of coal from Mission mine No. 1 to the brick company's plant has been 58 cents a ton. The rate for transportation within the Danville switching district is 25 cents a ton. That service is rendered by a switching crew, which is engaged in the work for less than 9 hours a day, receiving very little overtime pay. Mission mine No. 1 is served by a line crew which leaves the Lyons yard. Empty cars are supplied to the mine mostly from the Hillary yard, though occasionally some are supplied from the Lyons yard and some from Oakwood, which is west of the mine. The engine crew works out of the Lyons yard and goes on duty about 4:30 in the morning daily, except Sunday. The engine goes to Danville Junction, where it picks up passenger coaches and a caboose in which miners are transported from Danville Junction and intermediate places to Mission mine No. 1 and other mines in the neighborhood. From the mine, the train proceeds west to Oakwood, and hauls the miners from there to the mines. The passenger coaches are then detached, the loaded coal cars are picked up and hauled to the Hillary yard, and empty cars are then delivered to the mine. At 3:50 in the afternoon the crew starts returning the miners to their homes, and as a rule the day's work is completed about 5:30 in the evening. Thus the crew works several hours overtime each day. The pay for an 8-hour day for each of the two crews, the line crew and the switching crew is substantially the same; the former being $29.24 and the latter $29.92. The wages for overtime are one-half higher than regular wages. After the loaded cars are delivered by the line crew to the Hillary yard, a switching crew classifies them in the yard. A third crew makes delivery of coal and empty cars to the brick company, and takes the cars that are loaded with brick to the Hillary yard for classification. A rate of 25 cents a ton applies to the switching or industrial limits that have been established at Danville to extend east 2.1 miles, west 4.96 miles, and south 6.15 miles from the passenger station, and the rate is common to all stations on lines of the Big Four for the hauling of coal between points within the industrial limits except Hillsboro, Ill., where the rate is 13 cents. In the Danville industrial limits the rate of 25 cents may be for a haul of 8.35 miles, while the haul from Mission mine No. 1 to the brick company's plant is not more than 6 miles, and the rate is 58 cents.

The rate changes which produced the present rate of 58 cents as ascertained by the commission were as follows: The rate of 16 cents was established by the appellant prior to April 24, 1917. By an order effective October 16, 1917, the Illinois Commerce Commission authorized an increase of 15 cents a ton. This rate of 31 cents was increased to 50 cents on June 25, 1918, under General Order No. 28, issued by the Director General of Railroads. It was increased by similar orders from time to time, so that, on February 19, 1920, the rate was 64 5/10 cents. On July 1, 1922, a general reduction of 10 per cent. was ordered on all freight rates, resulting in the rate of 58 cents. These changes resulted in an increase of 262 per cent. in this rate, while general freight rates in Illinois have been increased only 75 per cent. The commission's orders fixing the rate of 29 cents is based upon its finding ‘that the transportation conditions surrounding the transportation of bituminous coal from Mission mine No. 1 of the United Electric Coal Companies at Danville, Ill., to the plant of the Danville Brick Company at the same point, is not substantially different from the transportation conditions surrounding the transportation of coal between industries in the Danville switching district,’ and upon the further fact that, had the same percentages of increase and decrease, which were required to be made in freight rates generally, been made applicable to coal also, the rate which is now the subject of consideration would have been 29 cents instead of 58 cents.

It is to be observed that Mission mine No. 1 is not at Danville but is entirely outside the switching district, and is not at the same point as the plant of the Danville Brick Company, and that there is no evidence in the record in regard to the transportation conditions surrounding the transportation of coal between industries in the Danville switching district, and no basis for a comparison except that there is evidence of a difference in the service rendered in the transportation of coal from the mine and within the switching district, as is shown by the finding in the order that the service performed under the rate in question is rendered by a mine run crew and not by a switching crew. This crew, under the evidence, is classed as a road crew, and the transportation of the coal from the mine to the Hillary yard must be regarded as a road-haul movement, and not comparable as to proper charges for the service with switching movements. While the road crew is paid a slightly lower wage than the switching crew for a regular 8-hour day, it works 3 or 4 hours overtime to 30 or 45 minutes overtime by the switching crew, and therefore the cost of the road crew is higher than that of the switching crew. This road crew or mine crew also handles passenger coaches between Danville Junction and Oakwood for the hauling of miners between their homes and the mine, but it is not this fact that distinguishes it from the switching crew, but the fact that it goes ouside the yard limits. The superintendent of the railroad company testified that this crew could not be changed to a switching crew because the schedule and agreement with the train organizations would not permit, and the yard could not be extended, because the organizations of the appellant's employees would oppose it. The mine run crew did not take cars from the mine directly to the brick company's plant. Coal from Mission mine No. 1 to the brick company is hauled by the road engine to the yard. The yard engine classifies the cars into cuts, the cuts are pulled out of the yard, and the cars are finally delivered to the brick company's plant by a switch engine.

[1] The burden of proof was on the brick company to show that the rate of which it complains is unreasonable. State Public Utilities Com. v. Atchison, Topeka & Santa Fé Railway Co., 115 N. E. 904, 278 Ill. 58. The only evidence that the charge for carriage between points within industrial limits is fair and reasonable is that the rate is general except at Hillsboro. There is no evidence that the rate of 58 cents for hauling from Mission mine No. 1 is or is not reasonable and fair, except a comparison between it and the rate within the industrial limits and a comparison with line rates for the hauling of coal similar distances between other points. The rate of 58 cents applies from all mines on the lines of the Cleveland, Cincinnati, Chicago & St. Louis, the Wabash, and the Chicago & EasternIllinois railroads and the Illinois Traction System in the vicinity of Danville to the industries in Danville. The distances of the mines from Danville range from 3 to 12 miles. Exhibits in evidence show that the rate for hauling coal like distances is less in...