Iowa-Illinois Gas & Elec. Co. v. Perrine

• Decision Date: 15 July 1953
• Docket Number: Gen. No. 10684,IOWA-ILLINOIS
• Parties: , 1 P.U.R.3d 457 GAS & ELECTRIC CO. v. PERRINE et al.
• Court: United States Appellate Court of Illinois

Page 572

114 N.E.2d 572

351 Ill.App. 195, 1 P.U.R.3d 457

IOWA-ILLINOIS GAS & ELECTRIC CO. v. PERRINE et al.

Gen. No. 10684.

Appellate Court of Illinois, Second District.

July 15, 1953.

Rehearing Denied Oct. 6, 1953.

Latham Castle, Atty. Gen., Oakleaf & Churchill, Andrew Kopp, Moline, Robert Eagle, Samuel Gilman, Rock Island, Stewart & Lytton, F. Joseph Ryan, East Moline, for appellants.

Charles H. Whitmore, Rock Island, Robert G. Graham, Moline, Dean R. Stichnoth, Rock Island, for appellee.

DOVE, Presiding Justice.

On October 30, 1952, the plaintiff, an Illinois Corporation engaged in furnishing gas and electric service in the cities of Rock Island, Moline, East Moline and in various Iowa cities and in certain rural areas in both Illinois and Iwoa, filed with the Illinois Commerce Commission its schedule No. 2, asking that its electric rates be increased to take effect on December 1, 1952. On November 18, 1952, the Commission entered an order setting the rates down for hearing on December 9, 1952, and suspending the effectiveness of the proposed rates until March 29, 1953. On November 21, 1952, the plaintiff filed its motion requesting that the Commission enter an order that the rates set forth in Schedule No. 2 be made effective at once as temporary rates and be kept effective until a final determination is made by the Commission of proper and reasonable rates to be charged by the plaintiff.

On January 5, 1953, the instant verified complaint was filed by the plaintiff, Iowa-Illinois Gas and Electric Company, in the circuit court of Rock Island County making the members of the Illinois Commerce Commission and the Attorney General of Illinois defendants. The complaint prayed for a temporary injunction restraining the defendants (a) from enforcing any of the provisions of the suspension order entered by the Commission on November 18, 1952; (b) from interfering in any way with plaintiff's charging and collecting the rates for electric service set out in its Schedule No. 2; (c) from instituting any proceedings to enforce the suspension order issued by the Commission on November 18, 1952; and (d) from taking any steps or instituting any suits to impose fines upon, or recover penalties from, plaintiff because of its failure to charge the rates set forth in its previous rate Schedule No. 1 or its action in charging and collecting, after the issuance of a temporary injunction, of its rates set forth in its Schedule No. 2. The complaint concluded by praying that upon a final hearing the temporary injunction be made permanent.

Accompanying the complaint were copies of the proposed rate Schedule No. 2 filed with the Commission by the plaintiff on October 30, 1952, the suspension order issued by the Commission on November 18, 1952, the motion filed by the company with the Commission on November 21, 1952, for temporary rates and, also, a copy of plaintiff's rate schedule No. 1. On January 5, 1953, plaintiff filed its motion for a temporary injunction, and in support of that motion, the affidavits of its vice president in charge of operations, of Charles H. Bartlett and Peter Antonelli, engineers, of Paul Grady and S. Lloyd Nemeyer, public accountants, and of R. Harvey Tinsman, secretary-treasurer of plaintiff, were filed.

On January 9, 1953, the defendants entered their special and limited appearances and moved the court to change the venue of the action to either the circuit or superior court of Cook County or to the circuit court of Sangamon County because none of the defendants resided in Rock Island County and because no part of the transaction, out of which the alleged cause of action arose, had occurred in Rock Island County. This motion, after hearing, was denied.

Leave was thereafter granted Moline Consumers Company, Le Claire Hotel, Inc., Eagle Signal Corp., Frank Foundaries Corp., and Moline Iron Works to intervene, and on January 15, 1953, the verified joint answer of the defendants to the complaint was filed and also a reply to the motion of the plaintiffs for a temporary injunction was filed, together with affidavits of Fred Kleinman, Chief of Accounts and Finance of the Illinois Commerce Commission, Herbert Johnson, an economist on the staff of the Illinois Commerce Commission, James J. Danaher, Cyrus J. Colter, J. G. Van Keuren, and Dale E. Sutton, members of the Commission, and Milton Mallin, Assistant Attorney General of the State of Illinois. Subsequently other parties intervened by leave of court, additional affidavits were filed, and on February 19 and 20, 1953, hearings were had upon the application of the plaintiff for a temporary injunction and, from an order entered on February 27, 1953, granting a temporary injunction as prayed, this appeal is prosecuted.

It is first contended by appellants that the circuit court of Rock Island County did not have jurisdiction to hear and determine this case and erred in denying their motion to transfer it to the circuit court or superior court of Cook County or to the circuit court of Sangamon County. The Civil Practice Act (Ill.Rev.Stat.1951, chap. 110), § 7 provides that every civil action shall be commenced in the county where one or more defendants reside or in which the transaction or some part thereof occurred out of which the cause of action arose. Counsel insist that none of the defendants reside in Rock Island County and that the transaction out of which this cause of action arose took place either in Sangamon or Cook County.

The action which initiated this proceeding was the filing by appellee of the proposed increased rate schedule No. 2 on October 30, 1952. While this schedule was filed by appellee with the Commission in Sangamon County and although the hearings upon plaintiff's motion that the rates set forth in that schedule be made effective immediately as temporary rates were had in either Sangamon or Cook County, it does not follow that the transaction out of which the controversy arose occurred only in Sangamon County or Cook County.

Smith v. Williams, a Florida case, reported in 160 Fla. 580, 35 So.2d 844, 847, involved an order entered by the Florida Industrial Commission affecting the personal and property rights of operators of private employment agencies located in Dade County, Florida. It was an original prohibition proceeding filed in the Supreme Court of Florida by members of the Industrial Commission of that state against Ross Williams, a judge of the circuit court in and for Dade County, Florida, seeking to prohibit him, as such judge, from entertaining a suit brought in that county. The suit which the members of the Commission sought to prohibit the Dade County circuit court from entertaining was filed in the circuit court of that county by several owners and operators of private employment bureaus which were operating under licenses issued to them by the Commission. The object sought was a declaratory decree declaring invalid a certain resolution and rules which the Commission had adopted and of which the plaintiffs had been advised by the Commission that if they did not conform thereto they would be prosecuted and their licenses revoked. The complaint also prayed for an injunction restraining the Commission from enforcing said resolution and rules. The circuit court of Dade County assumed jurisdiction, granted a preliminary injunction, which it refused to dissolve, and ruled the Commission to answer the cause within thirty days. It was then that the Commission instituted the instant proceeding in the supreme court.

It was the contention of the Commission that the circuit court of Dade County was not vested with jurisdiction to hear the injunction proceedings, inasmuch as the order of the Commission was entered at Tallahassee, in Leon County, where it had its official residence and chief headquarters. In dismissing the prohibition proceeding and holding that venue was properly laid in Dade County, the court stated that there were two types or classes of cases in which rules and regulations promulgated by state agencies may be brought into question in suits properly instituted for such purpose and that the proceeding pending in Dade County circuit court sought to obtain direct judicial protection from an unlawful invasion of the constitutional rights of the plaintiff within the county where the suit was instituted. The court then stated: 'In the proceeding at bar it is shown that the plaintiffs maintain places of business in Dade County. Their personal and property rights are directly threatened with infringement or curtailment in Dade County by the enforcement there of rules promulgated by the Florida Industrial Commission which are asserted by the plaintiffs to be unconstitutional and in direct violation of the statute conferring the rule-making power on the Commission with respect to the businesses of the plaintiffs in Dade County sought to be regulated. Whether the plaintiffs are correct in their contention that their constitutional rights in Dade County are being or will be unlawfully invaded by the enforcement of rules promulgated by the Commission is not before us for determination. Whatever the true facts may prove to be, the plaintiffs do have the right to have this question presented by their bill judicially determined in a suit instituted for that purpose in the jurisdiction where the alleged wrong is threatened and to seek and have relief from the operation of unconstitutional acts of the Commission which may be shown to have been committed in that jurisdiction.'

In Montana-Dakota Utilities Co. v. Public Service Commission of Montana, reported in 111 Mont. 78, 107 P.2d 533, 534, it appeared that the plaintiff was engaged in furnishing natural gas to consumers in Valley and Phillips Counties, Montana. The Public Service Commission of that state had, after hearings, entered an order reducing gas rates in the territory served by the plaintiff, and the plaintiff deeming the order unlawful and...