Vill. of Waynesville v. Pennsylvania R. Co.

• Decision Date: 22 December 1933
• Docket Number: No. 22125.,22125.
• Citation: Vill. of Waynesville v. Pennsylvania R. Co., 354 Ill. 318, 188 N.E. 482 (Ill. 1933)
• Parties: VILLAGE OF WAYNESVILLE et al. v. PENNSYLVANIA R. CO.
• Court: Illinois Supreme Court

354 Ill. 318

188 N.E. 482

VILLAGE OF WAYNESVILLE et al.

v.PENNSYLVANIA R. CO.

No. 22125.

Supreme Court of Illinois.

Dec. 22, 1933.

Proceedings instituted by the Pennsylvania Railroad Company by filing petition with the Illinois Commerce Commission, which petition was opposed by the Village of Waynesville and others. From an order of the Illinois Commerce Commission granting the prayer of the petition, the Village of Waynesville and others attempted to appeal to the circuit court. From an order of the circuit court denying a motion to dismiss the appeal, and reversing the order of the commission, with directions, the Pennsylvania Railroad Company appeals.

Order of the circuit court reversed, and cause remanded, with directions.

Appeal from Circuit Court, De Witt County; D. H. Wamsley, judge.

Hunter, Kavanagh & McLaughlin, of Peoria, and Oscar Lindstrand, of Chicago, for appellant.

E. W. Montgomery, of Atlanta, and Emerson M. Williams and Louis O. Williams, both of Clinton, for appellees.

JONES, Justice.

The Pennsylvania Railroad Company, appellant, filed a petition with the Illinois Commerce Commission for leave to discontinue the operation of passenger trains Nos. 908 and 909 between Peoria, Ill., and Decatur, Ill. At the hearing on the petition, the village of Waynesville and other municipalities and individuals who are appellees in this court appeared as respondents, but introduced no evidence. Upon the hearing before the commission, an order granting the prayer of the petition was entered. A petition for rehearing was denied, and on September 3, 1932, appellees filed with the commission a notice of appeal to the circuit court of De Witt county. Pursuant to the notice, the commission filed in the circuit court of that county a certified copy of the order entered by the commission and a copy of the record of the proceedings. Thereafter appellant, specifically limiting its appearance, filed in the circuit court a motion to dismiss the appeal. The grounds of the motion were that the circuit court never acquired jurisdiction of the appeal or of appellant because appellees had failed to file in the circuit court proof of service of notice of appeal as required by the statute. The circuit court overruled appellant's motion to dismiss the appeal and entered an order reversing the order of the commission, with directions to enter an order restoring service of said trains. From the order of the circuit court this appeal is prosecuted.

The testimony before the commission showed, and the commission found, that the out of pocket loss to appellant from the operation of trains Nos. 908 and 909 between Peoria and Decatur for the year ending September 30, [354 Ill. 320]1931, was $19,181.38, without making any allowance for interest on fixed charges or equipment, taxes, maintenance of way, or general expenses; that the yearly average passengers per day for train No. 908 between Peoria, Ill., and Terre Haute, Ind., progressively dropped from sixty-eight in the year 1926 to thirteen on May 31, 1932, and the gross passenger revenue per passenger train mile dropped from 49 cents to 11 cents during the same period; that on train No. 909 between Terre Haute and Peoria the average of passengers dropped progressively from sixty passengers a day in 1926 to eleven on May 31, 1932, and the revenue per passenger dropped from 44 cents to 9 cents during the same period, and that of 2129 miles traveled by train No. 909 in May, 1932, between Decatur and Peoria, 499 miles were traveled without a passenger. The commission also found that private automobiles have diverted passenger business from trains Nos. 908 and 909, that there is other train service in some of the municipalities, and that public necessity and convenience do not require the operation of said trains.

It is urged that the court erred in overruling the motion to dismiss the appeal from the order of the commission; that the court erred in reversing the decision of the commission; that the order of the circuit court is in contravention of the due process clause of the state and federal Constitutions; that the circuit court exceeded its jurisdiction in substituting its judgment and opinion for that of the commission; and that the record is devoid of any demand for service of the trains in question.

Section 68 of the Public Utilities Act (Smith-Hurd Rev. St. 1933, c. 111 2/3, § 72, p. 2252), authorizes appeals from orders of the Commerce Commission. It provides that the party taking the appeal shall file with the secretary of the commission written notice of appeal, and also that ‘the party serving such notice of appeal shall, within five days after the service of such notice upon the Commission, file a copy of said...