Chi. W. Towns Ry. v. Commerce Com. , 383 Ill. 20 ( 1943 )

Entertaining views at variance with those expressed in the majority opinion, I am compelled to dissent, and in setting forth my reasons for dissenting, I do so with the viewpoint of clarifying, if possible, the decisions of this court on the policy of the Public Utilities Act, as expressed by the legislature and previously interpreted by this court.

On many occasions this court has avowed the general principle that the primary consideration in cases of this kind is the convenience and necessity of the public. (West SuburbanTransportation Co. v. Chicago and West Towns Railway Co. 309 Ill. 87; Chicago Railways Co. v. Commerce Com. 336 Ill. 51;Bartonville Bus Line v. Eagle Motor Coach Line, 326 Ill. 200; Roy v. Commerce Com. 322 Ill. 452.) While priority in the field is an element to be considered, it will not of itself govern the granting of certificates of convenience and necessity. Bartonville BusLine v. Eagle Motor Coach Line, 326 Ill. 200.

The majority opinion proceeds upon the principle that the primary consideration in this case is the protection to be afforded an existing utility, on the theory that the method of regulation provided by our Public Utilities Act is that of regulated monopolies rather than competition. In support of that all-embracing statement, the case of Egyptian TransportationSystem v. Louisville and Nashville Railroad Co. 321 Ill. 580, is relied on, where the language used, in my opinion, does not contain the necessary restrictions to render it agreeable to other pronouncements of this court on the subject and in harmony with the last clause of section 55 of the Public Utilities Act, (Smith-Hurd's Ann. Stat. chap. 111 2/3, sec. 56,) and section 14, article II, of the constitution, prohibiting any grant of a special privilege or immunity. The last clause of section 55 of the Public Utilities Act provides: "No certificate of public convenience and necessity shall be construed as granting a monopoly or an exclusive privilege, immunity or franchise." The clearness with which the legislative intent is manifested prohibits any latitude of construction that would delete or contradict such expression. To proceed in this case upon the theory that appellant has a monopolistic right, in all instances, to prevent any service that might indirectly affect its income is placing it on too broad a plane and in a position not strongly entrenched in the decisions rendered in previous cases. The true rule, it seems to me, to be gathered from all the decisions, and that most soundly fortified in principle, is that the method of regulation in this State is through the exercise of the police power through an agency of the State, by which a license or privilege is granted by such agency to carry on a utility business. (Railway Express Agency v. Commerce Com. 374 Ill. 151.) As was said by the court in Northwestern Telegraph Exchange Co. v. Twin City Telegraph Co. 89 Minn. 495,95 N.W. 460, "As between two corporations exercising similar franchises upon the same street, priority, though it does not create monopoly, carries superiority of rights." Under our Public Utilities Act it must be conceded that an existing utility, serving a particular field of service, in justice and fairness should be given preference over a newcomer in the field, in view of the time and money spent in developing its business and in rendering adequate service to the public. Such are the holdings in this State without dissent. Chicago Bus Co. v. Chicago StageCo. 287 Ill. 320; West Suburban Transportation Co. v. Chicago andWest Towns Ry. Co. 309 Ill. 87; Choate v. Commerce Com. 309 Ill. 248; Egyptian Transportation System v. Louisville and NashvilleR.R. Co. 321 Ill. 580; Chicago Railways Co. v. Commerce Com.336 Ill. 51; Bartonville Bus Line v. Eagle Motor Coach Line, 326 Ill. 200; Illinois Power and Light Corp. v. Commerce Com. 320 Ill. 427; Chicago, Burlington and Quincy Railroad Co. v. Commerce Com.345 Ill. 576.

In only one of those cases is the broad statement made that the method of regulation provided by our Public Utilities Act is on the theory of regulated monopoly rather than competition. The primary purpose of the law being to subserve public convenience and necessity this court has approved, as the policy of our law, the prevention of unrestricted or ruinous competition and to that extent has given protection to existing utilities, on the theory that it is in accord with sound business economy that the utility already in the field be given an opportunity to furnish the required service, where it offers and is able to do so. ChicagoRys. Co. v. Commerce Com. 336 Ill. 51; Egyptian TransportationSystem v. Louisville and Nashville Railroad Co. 321 Ill. 580, and many other cases.

The only case which seems to support the rule of regulated monopoly is Egyptian Transportation System v. Louisville and Nashville R.R. Co. 321 Ill. 580. However, in that case the court held that "the Commerce Commission, under the Public Utilities Act, has power to require additional service, and in the absence of a showing that the public interest would be better served by granting a certificate to an entirely new and competing utility, such certificate should not be granted until it be determined whether the utility already in the field can meet the requirement of public convenience and necessity." The language is clear and explicit that only in the absence of a showing that the public interest would be better served by new and competing utilities should such certificate be refused until it be determined whether the utility in the field can meet the requirements of public convenience and necessity.

It is true that at the time of the application of any new and competing utility the utility in the field has a right to offer evidence not only that the public interest would not be better served by granting a new and competing utility a certificate of convenience and necessity, but also, if such service is found necessary, that it is able and willing to furnish such service. After this is offered it is for the commission in its discretion and judgment to weigh the evidence and pass upon the question as to whether or not a new competing utility can better serve the public interest.

If they make a finding as to this, the question whether the utility in the field can as well or better furnish the service is embraced in this finding, and of course the necessity of any further special finding is obviated.

The rule laid down in Bartonville Bus Line v. Eagle Motor CoachLine, 326 Ill. 200, supports this proposition, which, in my opinion, should be considered the correct rule to be applied by the commission in all cases of this kind. In that case it is said: "While priority in the field is an element to be considered, it will not of itself, govern the granting of the certificate. The proper consideration in a matter of this kind, is which applicant under the facts and circumstances shown by the evidence will best serve the public interest." In that and other cases this court has said that by the legislation in this State, it is the policy to provide the public with efficient service by compelling an existing utility to provide adequate service and at the same time protect it from ruinous competition. Its protection is not because it is a monopoly but because its protection against ruinous competition is a protection of the public against ultimate inefficient, inadequate service. All authorities agree that, whether the purpose of the Public Utilities Act be to provide for a regulated monopoly or for regulated competition, the question of primary importance is the public convenience and necessity, and whether the order of the commission is unreasonable must depend in each case upon the evidence produced as to such ultimate primary fact.

All the cases revolve around the rule of prevention of ruinous unrestricted competition and merely place the burden upon a new competing utility to show, as against an existing utility already occupying the field, that the existing utility is not rendering adequate and convenient service and that the operation of the new competing line would eliminate such inadequacy and inconvenience,(West Suburban Transportation Co. v. Chicago and West Towns Ry.Co. 309 Ill. 87,) or that the new utility is in a position to render better service to the public than the one already in the field. The decisions of this court hold that since the Commerce Commission is an administrative agency charged with providing such regulatory orders as may be necessary to carry out the legislative intent, (Public Utilities Com. v. Chicago and WestTowns Railway Co. 275 Ill. 555,) where a new utility seeks to enter a competitive field, the commission should consider evidence not merely of the fact that an existing utility is already in the field rendering service, but of other pertinent facts showing the need and convenience for the additional service and whether such service would be better than that furnished by the existing utility and whether or not the existing utility, by reason of its priority in the field is able to and can furnish such additional service. This evidence of ability to furnish should of course be offered at the time of the hearing on the application of the utility seeking to enter the competitive field. This presents all necessary questions to the commission for determination and its ruling is subject to review in accordance with certain principles of law laid down by this court.

This court has held that, in reviewing an order of the Commerce Commission, the court is limited to a determination as to whether the commission acted within the scope of its authority; whether the order has substantial foundation in the evidence; and whether any substantial or constitutional right has been infringed.(Chicago, Burlington and Quincy R.R. Co. v. Commerce Com.345 Ill. 576; Palmyra Co. v. Modesto Co. 336 Ill. 158; City ofChicago v. Commerce Com. 356 Ill. 501.) Further, it is not the province of the court to weigh the evidence and substitute the judgment of the reviewing court for that of the commission.(Campbell v. Commerce Com. 334 Ill. 293.) Orders of the commission should be set aside only if arbitrary, unreasonable, or in clear violation of some rule of law. (Wabash, Chester andWestern Railroad Co. v. Commerce Com. 309 Ill. 412; Commerce Com. v. Chicago and Eastern Illinois Railway Co. 332 Ill. 243.) In ascertaining if the findings furnish a reasonable basis for the order, the facts found may be re-examined in connection with the evidence, but the court is not supposed to enter upon an independent investigation of the evidence to develop new facts not found by the commission. Chicago, Burlington and Quincy R.R.Co. v. Commerce Com. 345 Ill. 576; Commerce Com. v. Chicago andEastern Illinois Ry. Co. 332 Ill. 243.

The law never intended the court to put itself in the place of the commission to try the matter anew as a legislative body substituting its findings for those of the commission. Clearly it was not intended by this law that the court should interfere with the orders and findings of the commission or review them further than is necessary to keep them within the law and protect the constitutional rights of the corporation over which it was given control.

It is my judgment the opinion is wrong in remanding the cause to the Commerce Commission with instructions to take such additional testimony and make such additional findings as may be necessary and proper to determine the issues raised by the appellants, which, of course, is the question as to whether or not any existing utility in the field is able to adequately perform the service found necessary in the public interest. If the respondents desired to offer testimony as to their ability to adequately perform the service found necessary, ample opportunity was extended them on several occasions during the various hearings before the commission.

It is asserted in the majority opinion that there are no findings to indicate the inability of appellants to render all of the service necessary for the people of the territory to be served, or that the West Towns is not capable of rendering the specific service. That, I believe, is not supported by the record.

The commission found that the physical facilities and the service of Chicago West Towns Railways, Inc., and Chicago Rapid Transit Company are from their very nature not designed and are not adequate to render the type of service proposed to be rendered by Bluebird Coach Lines, Inc.; that the service proposed by the Bluebird is distinct in character from that rendered by Chicago West Towns Railways, Inc., and Chicago Rapid Transit Company; that Chicago West Towns Railways, Inc., and Chicago Rapid Transit Company offer to and do operate in the mass transportation of passengers, their facilities, equipment and operating practice being intended to accommodate, as conveniently as may be possible, the transfer of heavy loads between points along their routes; that they operate large numbers of vehicles on frequent headways with many scheduled stops and that their operating units are appropriately designed to provide as many seats as possible within the limited space of the unit, but with sufficient room, at the same time, for the standing loads encountered during rush hours; that the service of Chicago, Burlington Quincy Railroad Co. is not adequate to serve the public convenience and necessity required; that numerous inconveniences are suffered by the traveling public of Berwyn and Cicero in using the combined facilities of Chicago West Towns Railways, Inc., Rapid Transit, Chicago, Burlington Quincy Railroad Co., Chicago Motor Coach Co., and surface lines in reaching the central business district of the city of Chicago and the northern part of said central business district, which said inconveniences are alleviated by the operation of the Bluebird; that Bluebird's operation constitutes a service of an express nature which reduces the running time from Cicero and Berwyn to the northern section of the central business district of Chicago and vice versa; that Bluebird's operation provides a fast, convenient and efficient service entirely different and distinct in character from the kind presently rendered by other existing utilities or any combination thereof, thus better serving and promoting the public convenience and necessity of public transportation for Berwyn and Cicero; and that public convenience and necessity require that a certificate should be granted to Bluebird.

There are also findings that both the West Towns and Rapid Transit Lines are in Federal bankruptcy reorganization proceedings and are operating at a loss; that the use of the combined facilities of the West Towns and Rapid Transit Lines requires passengers to obtain transfers and to take a much longer time to reach the loop district than by the Bluebird service; that the transfer requires a long wait at the transfer points and requires the payment of two fares.

There is a specific finding that the public convenience and necessity required the proposed service. That is a sufficient finding that the present joint service of the West Towns and the Rapid Transit Lines is not adequate. By its findings the commission expressed its conclusion that the Bluebird could best serve the public convenience and necessity. The findings were supported by the evidence. It is too plain for argument that any order entered by the commission against the West Towns and Rapid Transit lines for adequate or additional services would be subject to the orders of the Federal court. The offers to render the service found necessary and convenient by the commission were made by the manager and the attorneys and there appears no showing that the trustees appointed in the reorganization proceedings would or could obtain Federal court sanction for engaging in such service of a new and distinct type. No genuine nor bona fide offer can be said to have been made, and the record in this case fails to show that the trustees of appellants made known their willingness and ability to furnish the proposed service. Had they presented orders of the Federal court authorizing and approving such offers and orders authorizing the expenditure of funds in custodia legis for the purchase of the required equipment, the offer might have been considered genuine and made in good faith. But an existing utility, to justify the commission in granting it protection against competition, must make known its ability and willingness in some manner by competent evidence showing an authority to comply with such order of the commission as it may enter in that behalf. For the reason that the record fails to show any bona fide or genuine offer supported by evidence of its ability to render the proposed services, it is my opinion the appellants are not entitled to have a further hearing in the matter.

Further, it is not necessary to remand the cause to the Commerce Commission as to any special findings as to whether or not the utility in the field can or will adequately perform the service. No testimony in this respect offered was rejected, which, if it had been, would present a different situation and one similar to that in the case of Egyptian Transportation System v. Louisville and Nashville R.R. Co. 321 Ill. 580, and to permit the cause to go back under such circumstances is to permit the existing utility to again try the case in an attempt to overcome the findings of the commission that the public interest would be better served by a certificate being issued to the new and competing utility.

Summing up at this point, it is my opinion that when a petition is presented to the commission for a certificate of convenience and necessity in territory being served by an existing utility, the burden is on the petitioner to show in the first instance, that public convenience and necessity warrants the proposed service and that such proposed service can be better performed by petitioner than by the utility already in the field with its present service rendered in connection with such additional or extended services as the commission may find from the evidence that public convenience and necessity requires. If the commission finds, from the evidence, that petitioner can better furnish the service required it should issue a certificate unless the commission finds from the evidence that the granting of such certificate would result in ruinous competition to the existing utility. The utility already in the field may exercise its prior right to render such adequate service as the commission may find necessary and convenient, but its claim to such priority must be based upon evidence duly offered at the hearing and not upon a mere offer, without proof of ability, to render the service. Applying such rules, the decision made by the Commerce Commission was within the scope of its authority, was not without foundation in the evidence, and no constitutional right has been infringed. The findings of the commission are conclusive on the court unless manifestly against the weight of the evidence. (Public Utilities Com. v. Smith,298 Ill. 151.) We must accord to its decisions the strength due to a tribunal appointed by law and informed by experience. Having examined the record and being guided by these rules, I find no error in the order of the Commerce Commission nor in the judgment of the circuit court affirming it. The judgment of the circuit court approving the order should have been affirmed.