Petition for Writ of Certiorari — Chicago, Burlington & Quincy Railroad v. Illinois Commerce Commission

IN THE

Supreme Court of the United States

Ocrokkn TERM, 1965.

Se

no. 8 52

CHICAGO, BURLINGTON AND QUINCY RAILROAD

COMPANY,

’ Petitioner,

vs.

ILLINOIS COMMERCE COMMISSION ex ret. STATE

OF ILLINOIS, DEPARTMENT OF P IC WORKS

AND BUILDINGS, DIVISION OF HIGHWAYS; CHI-

CAGO AND NORTH WESTERN RAILWAY COM-

PANY; NORTHWESTERN STEEL AND WIRE COM-

PANY; ann THE CITY OF STERLING, WHITESIDE

COUNTY, ILLINOIS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS.

2

CAM. W. KRORL,

547 W. Jackson Boulevard,

Chicago, Illinois,

Jerome F. Dmox,

. 111 W. Washington Street, ..

Chicago, Illinois,

Attorneys for Chicago, Burlington

and Quincy Railroad Company,

petitioner. °

2

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INDEX.

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Sussect Matter.

PAGE

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Appendix A— Opinion of Illinois Supreme Court 9

Appendix B- Judgment of Illinois Supreme Court 13

TABLE oF Cases.

Brinkerhof-Faris Co. v. Hill, 281 U. S. 673, 1930 7

Burket v. Reliance Bank and Trust Co., 367 III. 196,

%%%. ³ĩ¹2 7

Citizens Valley View Co. v. Illinois Commerce Com-

mission, 28 III. (2d) 294, 192 N. E. (2d) 392, 1963. 7

Illinois Central Railroad v. Illinois Commerce Com-

mission, 397 III. 399, 74 N. E. (2d) 893, 1947. 7

O'Connor v. Rathje, 368 III. 83, 12 III. (2d) 878, 1937. 7

Thompson v. Illinois Commerce Commission, 1 III. (2d)

7

350, 115 N. E. (2d) 622, 19533

— thie ee nan hides oe cam

Supreme Court of the United States

Octoser Term, 1965.

1 i

CHICAGO, BURLINGTON AND QUINCY RAILROAD

COMPANY, ;

Petitioner,

vs.

ILLINOIS COMMERCE COMMISSION ex ret. STATE

OF ILLINOIS, DEPARTMENT OF PUBLIC WORKS

AND BUILDINGS, DIVISION OF HWAYS; CHI-

CAGO AND NORTH WESTERN RAILWAY COM-

PANY; NORTHWESTERN STEEL AND WIRE COM-

PANY; AxD THE CITY OF S LING, WHITESIDE

COUNTY, ILLINOIS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS.

Petitioner prays that a writ of certiorari issue to review

the judgment of the Supreme Court of Illinois entered on

September 28, 1965 (Rec. 10).

CITATION TO OPINION BELOW.

The opinion of the Supreme Court of Illinois has been

published in 211 N. E. (2d) 279. The opinion is printed in

Appendix A hereto.

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A

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JURISDICTION.

The judgment of the Illinois Supreme Court was entered

on September 28, 1965 (Rec. 10). Rehearing was denied

on November 18, 1965 (Rec. 13). The jurisdiction of this

court is invoked under 28 U. S. C. Section 1557 (3).

QUESTION PRESENTED.

The question presented is whether it was a denial of due

process of law guaranteed by the Fourteenth Amendment

to the Constitution of the United States for the Illinois

Supreme Court to have affirmed the judgment of the trial

court from which the appeal was taken without the Illinois

Supreme Court having passed upon the issues raised in the

IIhinois Supreme Court by petitioner.

STATUTE INVOLVED.

The, statute involved in the appeal by the petitioner to

the Illinois Supreme Court is Sec. 58 of the Illinois Public

Utility Act (Sec. 62, Ch. 111% III. Rev. Stat., 1963) which

0

provides as follows:

„No public road, highway, or street shall hereafter

be constructed across the track of any railroad com-

pany at grade, nor shall the track of any railroad com-

pany 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, with-

out having first secured the permission of the commis-

sion. 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

3 a

and conditions as it may prescribe. The commission

shall have power to determine and prescribe the man-

ner, including the particular point of crossing, and,

the terms of installation, operation, maintenance, use

and protection of each such grade crossing.“ l

STATEMENT.

The facts relative to the appeal to the Illinois Supreme

Court are accurately stated in the opinion = the court

(Appendix A, p. 9). :

Petitioner appealed to the Illinois 5 Court from

an order of the Circyit Court of Whiteside County which

had affirmed an order of the Illinois Commerce Commission

granting the Department of Public Works and Buildings

the authority to extend a street at grade level across peti-

tioner’s tracks (Illinois Supreme Court Opinion, Appén-

dix A, p. 9). In the brief filed by petitioner in the Illinois

Supreme Court (Rec. 5) it raised the following issues:

1. The finding of the Illinois Commerce Commission

that the opening of the street would facilitate the passage

of emergency vehicles was unreasonable and arbitrary

(Brief, Division II of Points and Authorities; Division i

of Argument). .

2. The finding of the Illinois Commerce Commission of

the presence of traffic congestion in the area was unreason-

able and arbitrary (Brief, Division III of Points and

Authorities; Division III of Argument).

3. The finding of the Commission that the opening of the

street would convenience school children was unreasonable

and arbitrary (Brief, Points and Authorities, Division IV;

Argument, Division IV).

4. The opening of the street across petitioner's” ‘tracks

at grade level would seriously i impair petitioner’s switching

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4.

IR Ae Division V of Points and Authorities;

Division Argument).

The opinion of the Illinois Supreme Court consists of

but ten paragraphs. The first seven give the nature of the

ease, a description of the area in question and a description

of the proposed grade crossing. The court stated in the

eighth paragraph with brevity that petitioner contended

that there was no substantial evidence to support the order

of the Commission and that the extension of the street would

impair petitioner’s switching operations. 0 ©

Nowhere in these eight paragraphs (or elsewhere in the

opinion) did the court state what the issues were (to which

we have previously referred that were raised in Divisions

II, III and IV of petitioner’s brief) in support of its con-

tention that there was no substantial evidence to support

the order of the Commission.

In the ninth and tenth paragraphs of the opinion, ‘tire

court affirmed the order of the trial court confirming the

order of the Illinois Commerce’ Commission without even

mentioning the issues raised by petitioner. The opinion

merely gave the conclusion of the court that ‘‘after examin-

ing the record we cannot say that the findings and order of

/. the Commission were against the manifest weight of the

evidence.

There is inl a syllable in the opinion regarding how

‘or why it was not reasonable for the Commission to

find that the opening of the street would ‘facilitate the

passage of emergency vehicles or that there is traffic con-

gestion in the area or that the opening of the street would

convenience school children.

The only issue raised by petitioner which: was .

at all by the court was the one relating to the impairment

et its switching operations. The court said, While the

proof establishes that some inconvenience will be suffered

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e Burlington, it is apparent on the other hand that

the proposed changes will be to the best interest and safety

public. Even the determination of that issue was

nsistent with an earlier ſinding in the opinion in the

seventh paragraph that, The proposed extension of Ave:

nue F would result in impairment of the oe 8

switching operations.“ 5

Petitioner filed a petition for rehearing in the Illinois

Supreme Court in which it raised issue that the failure

of the court to pass upon the issues raised in its brief was

a denial of due process of law guaranteed by the Fourteenth

Amendment to the Constitution of the United States (Rec.

12, petition for rehearing). ‘The court denied the *

for rehearing (Rec. 13). 0 .

REASONS FOR GRANTING WRI? OF CERTIORARI

The Illinois Supreme Court clearly failed to pass upon

the issues raised by petitioner in that court. The nearest

the court came to passing upon these issues is in the ninth

paragraph of the opinion in which it ig, stated that after

examining the record the court could not say that the

findings and order of the Commission were against the

manifest weight of the evidence.

That finding was only a conclusion upon the ultimate

question in the case, namely whether public convenience and

necessity had been established. The opinion is silent upon

the underlying issues raised by petitioner. In any case of

this kind whether public convenience and necessity requires

the opening of a stréet across a railroad depends upon the

particular issues in the case.

Public 8 necessity is only the ultimate

question, the dete tion of which depends upon the un-

derlying issues. Public convenience and necessity i is merely

the final adjudication after the e issues have been

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passed ‘upon to determine whether public convenience and

necessity is present. For the court to say, as it did here,

that the testimony of the individuals it mentioned ‘‘tended

to show that public safety, convenience and necessity”’’

required the street extension is merely to determine the

ultimate question without determining the issues raised by

petitioner upon which the ultimate question depends.

No person reading the opinion of the court, and without

ar. Nen petitioner's brief, could ascertain what the

issues were that petitioner raised in support of its conten-

tion that the findings of thé Commission were unreasonable

and arbitrary, except the inconsistent finding about the im-

pairment of petitioner’s switching operations. The nien

does not so much as mention the issues.

For example, let us say ‘that in an appeal of a judgment

in a personal injury case, the ultimate question to be deter-

mined is whether the trial court should have entered judg-

ment against the defendant upon a verdict in fayor of the

plaintiff. ‘The defendant raised the issue that in mpetent

evidence was admitted without which there was no evidence

whatsoever that defendant was guilty of negligence. In its

opinion.the reviewing court merely stated the ultimate fact

that negligence had been established without even a refer-

ence to the issue raised by defendant that the judgment de-

pended upon incompetent evidence. It clearly could not be

said that the court passed upon the issue which the de fend-

ant had raised.

In its opinion in this case, the Illinois Supreme Court did

not even refer to one item of evidence upon which the

ultimate question of public convenience and necessity de-

pended. This is a departure from its prior practice in other

oases involving the reasonableness of orders of thep IIlinois

_ Commerce Commission where it has recited enough of the

evidence so that it could be seen whether the standards

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of redsonableness had been met (Cf., Citizens Valley View

Co. v. IAinois Commerce Commission, 28 III. (2d) 294, 192

N. E. (2d) 392, 1963; Thompson v. Illinois Commerce Com-

mission, 1 III. (2d) 350, 115 N. E. (2d) 622, 1958; Illi

Central Railroad v. Illinois Commerce Commission,

III. 399, 74 N. E. (2d) 893, 1947).

The duty of a reviewing court of a state to pass upon

issues submitted to it is a right guaranteed by the Four-

teenth Amendment to the Constitution of the United States.

While the highest court of a state has the supreme power

to interpret the laws of a state and neither an erroneous 1

decision nor the overruling of a previous decision will give

rise to: a claim under the Fourteenth Amendment; yet

where such a court upon appeal refuses to pass upon a

relevant issue submitted by a party, it is a denial of due

process of law (Brixkerhof-Faris Co. v. Hill, 281 U. S.

673, 680, 681, 1930)., In such a case where the party ad-

versely effected raises in its petition for rehearing in the

state court that the action of the court in failing to pass

upon the issues is a denial of due process of law as as-

sured by the Fourteenth Amendment, the federal question

is raised timely because it is made at the first opportunity

(Ibid. pp. 677-678). Nr

The Illinois Supreme Court itself holds that due 1

of law guarantees a party the right to be heard upon the

issues raised i in a judicial proceeding (Burket v. Reliance

Bank and Trust Co., 367 III. 196, 11 N. E. (2d) 6-9, 1937;

O'Connor v. Rathje, 368 Ill. 83, 12 N. E. (2d) 878-879, 1937).

Petitioner submits that the constitutional guaranty of due

process assuring a party in a judicial proceeding the right

to be heard upon relevant issues which he. raises no less

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trial court.

Petitioner further submits that where, as here, rele-

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vant issues are submitted by a party in its 8 the

court fails to pass upon them in its opinion; and fails to

do so a second time when the party’s petition for rehearing

specifically calls to the attention of the court that the

issues were not passed upon and that the guaranty of

due process of law of the Fourteenth Amendment will be

taken from the party unless the issues are passed upon,

the action of the reviewing court in failing to pass upon

the issues is clearly one offefusal to pass upon the i issues

and not one of oversight; and is a denial of due process

of law.

If the opinion of the court had passed upon the issues

raised by petitioner by determining them in its favor it

could not have determined thht public convenience and

necessity had been established. It would then have reached

a conclusion contrary to the conclusion it reached here.

On the other hand, if the court had passed upon the issues

adversely to petitioner, it then would have determined that

public convenience and necessity had been established. In

either case, the court would have accorded petitioner due

process of law. Neither, however, is the case here.

CONCLUSION.

For the foregoing reasons, this petition for a writ of

certiorari should be granted. ,

' Respectfully submitted, 4

Cant W. Knol,

| 547 W. Jackson Boulevard,

2 Chicago, Illinois,

JON F. Drxon,,,

111 W. Washington Street,

Chicago, IIlinois,

Attorneys for Chicago, Burlington

and Quincy Railroad vial

5 vetitioner.

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APPENDIX ay

OPINION OF THE SUPREME COURT OF ILLINOIS.

(Rec. 7.)

Docket No. 39104—Agenda 24—May, 1965.

Chicago, Burlington & Quincy Railroad Company, Appel-

lant, v. Illinois Commerce Commission et al., Appellees.

T

Mn. Justice Housz delivered the opinion of the court:

The Chicagd, Burlington & Quincy Railroad (Burling-

ton) has appealed from an order of the eireuit court of

Whiteside County confirming an order of the Illinois Com-

merce Commission granting the Department of Public

Works and Buildings of the State of Illinois permission to

extend Avenue F at grade across the tracks of the Burling-

ton and the Chicago and North Western Railroad (North

Western) in the city of Sterling. The appeal is pursuant to

section 69 of the Publie Utilities Act. Ill. Rev. Stat 1963,

chap. 1113, par. 73.

In February, 1962, the Department of Public Works and

Buildings filed with the Commission its pétition for permis-

sion to separate the grade of Avenue G from the North

Western tracks, and for the extension of Avenue F across

the tracks of the North Western and Burlington. (Avenue

F has heretofore ended short of the tracks.) On May 31,

1962, the Commission entered an order granting the pro-

posed separation of grade at Avenue G and denying the

proposed extension of Avenue F. ited

In June,-1962, tho Northern [lincie Water Gerpenation

filed its petition for leave to intervene and for a rehearing

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on the Commission’s order of May 31, 1962. The city of

Sterling filed a petition for rehearing in July, 1962 averring,

among other things, that the extension of Avenue F at grade

level was necessary for the safety and welfare of the citizens

of Sterling apparently because of the limited access of

emergency and other vehicles into the area. The Commission

allowed the water company to intervene and granted the pe-

titions for rehearing, but only with respect to that part of

its order which related to the proposed extension of Avenue

F.

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The Burlington then filed its cross-petition seeking to

have a pedestrian crossing at grade retained at Avenue G.

On September 25, 1962, the Commission entered an interim

order requiring the maintenance of such a pedestrian cross-

ing. Finally, on October 24, 1962, the Commission entered

its order granting permission to extend Avenue F at grade

and ordering that the pedestrian crossing at Avenue G be

discontinued.

The proposed extension of Avenue F would provide a

third access street across the Burlington and the North

Western railroad tracks to the area lying between the Rock »

River on the south and the railroad tracks on the north. A

Northwestern Steel and Wire Company plant, employing

about 3,000 men on a three shift basis, lies along the north

bank of the Rock River between Avenue B on the east and

Avenue K on the west. The area between the tracks and the

river is primarily industrial, but there are about 400 inhabi-

tants, including some 225 children, living there. There are

two east-west street8, Wallace and Miller, between the tracks

and the river, and two north-south streets, Pike and Bass,

which’ eonneet Wallace and Miner but do not cross the

tracks or the river.

Avenue B, and Avenue K which is 3450 feet to the west,

are presently the only means of access to this area from

north of the railroad tracks. Prior to the Commission’s

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order of May 31, 1962, authorizing the separation of the

grade of Avenue G and the Burlington and North Western

railroad tracks, Avenue G, located midway between Ave-

nues B and K, provided a third means of access to that area.

However, it also continued up a grade to a bridge over the

Rock River, thereby carrying through traffic between Rock

Falls. and Sterling. To facilitate the flow of this through

traffic, the Commission authorized the construction of an

Avenue G overpass from north of the railroad tracks di-

rectly to the bridge over the Rock River, so that traffic be-

tween Rock Falls and Sterling would over-pass the congested

area between the river and the Burlington and North West-

ern tracks. Access to this industrial and residential area by

means of Avenue G would thus be eliminated, but Avenue

F, one block east of Avenue G, would provide a substitute

access street. ?

The tracks of the Burlington end west of the proposed

extension of Avenue F, 100 feet east of Avenue G. From

this point west, the Burlington uses the tracks of the North“

Western. It conducts its switching operations between Ave-

nue B and Avenue G and also uses two interchange tracks

between Avenues B and G with the North Western. The

proposed extension of Avenue F would result in impairment

of the Burlington’s switching operations in that it would

have to break up its trains at Avenue F to avoid blocking

traffic. Extensive hearings were held and the record consists

of more than 700 pages of testimony and 67 exhibits. On

the bd&is of this record, the Commission made findings with

respect, to the type of area to be served, the volume and kind

of traffic to, from and in the area, the ability of emergency

vehicles to serve the area, and the amount of pedestrian’

traffic, especially children, across the railroad tracks.

The Burlington contends (1) that there is no substantial

evidence in the record to support the order, therefore it is

arbitrary and unreasonable, and public safety, convenience

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and necessity were not established, and (2) that the exten-

sion of Avenue F at grade across its tracks would seriously

impair its switching operations.

After carefully examining the record in this case we

cannot say that the findings and the order of the Com-

mission were against the manifest weight of the evidence:

The testimony of the fire chief, police chief, mayor, traffic

officer, city engineer, school superintendent, and several city

councilmen from Sterling tended to show that public safety,

convenience and necessity requiri the extension of Avenue

F at grade to take people into and out of this area as a sub-

stitute for Avenue G. While the proof establishes that some

inconvenience will be suffered by the Burlington, it is ap-

parent on the other hand that the proposed changes will be

to the best interest and safety of tlie public. Under the pro-

visions of section 68 of the Public Utilities Act (III. Rev.

Stat. 1963, chap. 1113, par. 72), the Commission’s findings

are prima facie true. Unless it clearly appears that the Com-

mission’s findings are pegainst the manifest weight of the

evjdence, or that the Commission lacked jurisdietion to enter

the order, its order should not be set aside. Galt v. Illinois

Commerce Com., 28 III. 2d 501; Forest Preserve District of

DuPage Co. v. Illinois Commerce Com., 12 III. 2d 319; Chi-

cago Junction Railwa Co. v. Illinois Commerce Com., 412

III. 579. ;

The judgment of the circuit court of Whiteside County

confirming the order of the Illinois Commerce Commission

is affirmed.

JUDGMENT AFFIRMED.

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_ APPENDIX B.

JUDGMENT OF SUPREME COURT OF ILLINOIS.

(Rec. 10.)

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Be It Remembered, that, to-wit: on the 28th day of

September, 1965, the same being one of the days of the

term of Court aforesaid, the following proceedings were,

by said Court, had and entered of record, to-wit: :

Chicago, Burlington & Quincy Rail-

road Company,

Appellant,

No. 39104 vs.

Illinois Commerce Commission ex

rel., State of Illinois, Depart- | Appeal from Circuit

ment of Public Works and Build- + (Court, Whiteside

ings, Division of Highways; Chi- County 63 - L - 3.

cago and North Western Railway

Company; Northwestern Steel

Fund Wire Company; and the City

of Sterling, Whiteside County,

Illinois,

Appellees.

7

And now, on this day, this cause having been argued by

counsel, and the Court, having diligently examined and

inspected as well the record and proceedings aforesaid, as

matters and things therein assigned for error, and now,

being sufficiently advised of and concerning the premises

for that it appears to the Court now here, that neither in

the record and proceedings aforesaid, nor in the rendition

of the judgment aforesaid, is there anything erroneous,

vicious or defective, and in that record there is no error.

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Aah gt ales pny sma sat

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Therefore, it is considered by the Court that the judg-

ment of the Circuit Court of Whiteside County aforesaid,

Be Affirmed in All Things and Stand in Full Force and

7 Effect, notwithstanding the said matter and things theréin

assigned for error.

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