{ "id": 5117358, "name": "F.H. STUTZKE et al., d/b/a Stutzke Excavating and Trucking Company, Plaintiffs-Appellees, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellant", "name_abbreviation": "Stutzke v. Illinois Commerce Commission", "decision_date": "1993-03-18", "docket_number": "No. 4-92-0718", "first_page": "315", "last_page": "320", "citations": [ { "type": "official", "cite": "242 Ill. App. 3d 315" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "355 F.2d 854", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 842209 ], "opinion_index": 0, "case_paths": [ "/f2d/355/0854-01" ] }, { "cite": "332 U.S. 194", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 365064 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/332/0194-01" ] }, { "cite": "478 N.E.2d 1369", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1378" } ], "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529059 ], "pin_cites": [ { "page": "447-48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0435-01" ] }, { "cite": "527 N.E.2d 538", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "549-50" } ], "opinion_index": 0 }, { "cite": "173 Ill. App. 3d 395", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3478241 ], "year": 1985, "pin_cites": [ { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/173/0395-01" ] }, { "cite": "394 U.S. 759", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180466 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/us/394/0759-01" ] }, { "cite": "534 N.E.2d 1259", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1264" }, { "page": "1264" } ], "opinion_index": 0 }, { "cite": "179 Ill. App. 3d 1040", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2607460 ], "weight": 2, "pin_cites": [ { "page": "1047" }, { "page": "1047" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/1040-01" ] }, { "cite": "470 N.E.2d 1029", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1033-35" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 169", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147236 ], "pin_cites": [ { "page": "177-81" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0169-01" ] } ], "analysis": { "cardinality": 642, "char_count": 11642, "ocr_confidence": 0.797, "pagerank": { "raw": 9.722948898415619e-08, "percentile": 0.5303567891409885 }, "sha256": "04bfb128a6ba9478fe78da090065e9c82cbf0de79fc2464393c15c31a2e60944", "simhash": "1:cef63b77b88bff57", "word_count": 1845 }, "last_updated": "2023-07-14T16:35:07.830210+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "F.H. STUTZKE et al., d/b/a Stutzke Excavating and Trucking Company, Plaintiffs-Appellees, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nThe Illinois Commerce Commission (Commission) appeals from an order of the circuit court of Sangamon County reversing the Commission\u2019s order in a civil penalty proceeding against plaintiffs EH. Stutzke & D.E. Stutzke, d/b/a Stutzke Excavating & Trucking Company (respondents in Commission proceedings) (hereinafter Stutzke Excavating or plaintiffs). The Commission found Stutzke Excavating committed a number of for-hire intrastate moves on 32 days during a period from June 19 through November 29, 1989, in violation of section 18c \u2014 4104(b)(1) of the Illinois Commercial Transportation Law (Transportation Law) (111. Rev. Stat. 1989, ch. 95x/2, par. 18c\u2014 4104(b)(1)) by hauling asphalt under a license which allowed the hauling of \u201cbuilding materials,\u201d but not \u201croad building materials.\u201d The Commission fined Stutzke Excavating $12,800. (Illinois Commerce Comm\u2019n v. F.H. Stutzke & D.E. Stutzke (Aug. 28, 1991), Ill. Com. Comm\u2019n No. CP \u2014 593\u2014MC (Commerce Commission order).) Upon judicial review pursuant to sections 18c \u2014 2201 and 18c \u2014 2202 of the Transportation Law (111. Rev. Stat. 1991, ch. 95V2, pars. 18c \u2014 2201, 18c \u2014 2202), the circuit court reversed the Commission, remanded the cause to the Commission to vacate the civil penalty, and further ordered the Commission to pay plaintiffs attorney fees pursuant to section 10 \u2014 55(c) of the Illinois Administrative Procedure Act (Procedure Act) (111. Rev. Stat. 1991, ch. 127, par. 1010 \u2014 55(c)).\nIn this appeal, the Commission asks this court to consider whether the circuit court erred by reversing its decision and awarding plaintiffs attorney fees. We reverse.\nIn reversing the Commission\u2019s order, the circuit court apparently found that order was contrary to Commission regulations. (See 111. Rev. Stat. 1991, ch. 951/2, par. 18c \u2014 2202(l)(b).) The circuit court considered the facts that the Commission relied on (1) definitions of \u201cbuilding materials\u201d and \u201croad building materials\u201d contained in \u201cproposed rules\u201d which, at the time of the administrative hearing April 1991 in this case, had not yet been adopted, and (2) on an earlier Commission decision issued May 16, 1991, after the alleged violations in this case (Illinois Commerce Comm\u2019n v. Gary Robbins (May 16, 1991), Ill. Com. Comm\u2019n No. CP \u2014 463\u2014MC (Commerce Commission order)).\nIn this appeal, the Commission contends the circuit court erred in reversing the Commission\u2019s order because (1) plaintiffs admitted hauling the asphalt on the dates in question, arguing that its license authorized that activity, and (2) although the rules were \u201cproposed\u201d and the Robbins decision did postdate the plaintiffs\u2019 alleged violations, there was a long-standing \u201cstandard\u201d applied by the Commission to the effect that asphalt was a \u201croad building material\u201d not a \u201cbuilding material.\u201d The plaintiffs do not question the authority of the Commission to institute proceedings for violation of its licensing authority.\nAbsent from the record in this case is the hearing officer\u2019s report and the transcript of the evidentiary hearing (while a transcript has been included as exhibit C in the appendix of the Commission\u2019s brief, this does not make it part of the record on appeal (see 134 111. 2d R 321)). Nevertheless, the record does disclose that on February 4, 1976, a certificate identified as Ill.C.C. 11081 MC was issued to plaintiffs, whereby plaintiffs were authorized to haul the following commodities:\n\u201cMilk, fuel, livestock, household goods and building materials within a twenty-five (25) mile radius of a base point one-half mile south of Galt, Illinois; also, seed, feed, and quarry products within a forty (40) mile radius of a base point one-half mile south of Galt, Illinois; also, ferrous sulphate, soil compound, sulphate products and industrial waste materials containing sulphate within a thirty-five (35) mile radius of Rock Falls, Illinois.\u201d (Emphasis added.)\nThe evidence established that plaintiffs\u2019 trucks were conveying cold asphalt for road construction.\nThe Commission did adopt rules on commodity descriptions effective October 1, 1987 (11 HI. Reg. 15072 \u2014 207). The commodity classifications under these rules included \u201croad building materials\u201d under the heading \u201cAggregates/Quarry Products/Excavated Materials/Road Building Materials.\u201d (92 111. Adm. Code \u00a71460.100, at 3718 (Supp. 1988).) The classification listed asphalt as a \u201croad building material\u201d only when it was being moved to a road construction site. (92 HI. Adm. Code \u00a71460.100(c), at 3718 (Supp. 1988).) The commodity description of \u201cBuilding/Construction Materials\u201d included an extensive list of commodities, including asphalt, but there was a proscription that such commodities were considered to be \u201ca building or construction material only when moving to a building or construction site.\u201d (92 111. Adm. Code \u00a71460.130, at 3726 (Supp. 1988).) Existing licensees were given three years from the date of the rule to petition the Commission to restate their certificates to conform to the commodity descriptions. (See 92 111. Adm. Code \u00a71460.20, at 3715 (Supp. 1988).) These rules were repealed in 1988 (see 12 HI. Reg. 22172-73 (eff. December 15,1988)) and were never replaced.\nAdmitted into evidence at the hearing in the instant case as People\u2019s exhibit No. 4 was a \u201cNotice of Proposed Rules\u201d issued by the Commission (to be codified as title 92, section 1311.10 of the Illinois Administrative Code) and in which \u201cbuilding materials\u201d and \u201croad building materials\u201d were defined as follows:\n\u201ca) Building materials/construction materials include any commodity which will be used, in its present form, in the construction or repair of a building and become a part thereof. A commodity which may be used in the construction or repair of a building, but which may also have another use, can be transported under building material authority only to a building construction site.\n* * *\nf) Road building materials include commodities which will be used, in their present form, in the construction or repair of a road. A commodity which may be used in the construction or repair of a road, but which may have another use, can be transported under road building materials authority only to a road construction site. As used in this context \u2018road\u2019 includes parking lots, driveways and airport runways.\u201d (15 111. Reg. 4195, 4197-98 (proposed March 22, 1991) (proposed as 92 111. Adm. Code \u00a7\u00a71311.10(a), (f)).)\nThis rule had not been adopted when the Commission entered its order which is the subject of this appeal. In the Robbins case, relied on by the Commission in its order herein, the Commission, without citing any precedent, stated as follows:\n\u201cBy well-defined Commission precedent, the delivery of hot asphalt mix for use in road construction does not fall within the definition of \u2018building material\u2019 as contained in the licensed authority.\u201d (Illinois Commerce Comm\u2019n v. Gary Robbins (May 16, 1991), Ill. Com. Comm\u2019n No. CP \u2014 463\u2014MC (Commerce Commission order at 2).)\nThe plaintiffs here argue it was an abuse of discretion for the Commission to base its definition of \u201cbuilding materials\u201d on rules that had not been adopted as required by the Procedure Act. (See 111. Rev. Stat. 1991, ch. 127, pars. 1005-10(c), 1005-35(b), 1005-40.) We find, however, that the classifications of \u201cbuilding materials\u201d and \u201croad building materials\u201d involved in this case are not mandatory rules as defined by the statute. (111. Rev. Stat. 1991, ch. 951/2, pars. 18c \u2014 1201, 18c \u2014 1202(1), (5), (9); ch. 127, pars. 1003.09, 1005-10(a), 1005-15(a).) This appeal involves the question of whether those definitions should be considered \u201crules\u201d at all. In Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 177-81, 470 N.E.2d 1029, 1033-35, the Illinois Supreme Court found a new inflation-update procedure for the Illinois Department of Public Aid to be a rule and declared it invalid as a result of the agency\u2019s failure to follow proper procedure for adopting the rule. Nevertheless, this court has recognized that not all statements of agency policy constitute the adoption of a rule requiring compliance with the Procedure Act. (Kaufman Grain Co. v. Director of the Department of Agriculture (1988), 179 Ill. App. 3d 1040, 1047, 534 N.E.2d 1259, 1264.) For example, when an administrative agency interprets statutory language as it applies to a particular set of facts, the rulemaking procedure of the Procedure Act is not invoked. (Kaufman Grain Co., 179 Ill. App. 3d at 1047, 534 N.E.2d at 1264, citing NLRB v. Wyman-Gordon Co. (1969), 394 U.S. 759, 22 L. Ed. 2d 709, 89 S. Ct. 1426, and Board of Trustees, Prairie State College v. Illinois Educational Labor Relations Board (1988), 173 Ill. App. 3d 395, 412, 527 N.E.2d 538, 549-50.) Another judicially recognized exception, which the Commission urges this court to apply here, was expressed in City of Chicago v. Illinois Commerce Comm\u2019n (1985), 133 Ill. App. 3d 435, 447-48, 478 N.E.2d 1369, 1378, as follows:\n\u201cThe issue of whether an agency standard should be cast immediately into the mold of a general rule or whether the agency should proceed on a more informal basis adjusting its standards as the need arises was addressed by the United States Supreme Court in Securities & Exchange Com. v. Chenery Corp. (1947), 332 U.S. 194, 91 L. Ed. 1995, 67 S. Ct. 1575. There, the court interpreted a statute with the pertinent provisions essentially the same as our own act and concluded that the choice between proceeding by general rule or by individual ad hoc litigation is one that lies in the informed discretion of the administrative agency. (Accord, NLRB v. Majestic Weaving Co. (2d Cir. 1966), 355 F.2d 854.) Accordingly, we believe it is within the Commission\u2019s discretion to develop an interim rate standard without promulgating a rule.\u201d\nThe language of a certificate of authority should be construed in accordance with the ordinary meaning of the words used. (13 C.J.S. Carriers \u00a775, at 85 (1990).) Whether the plaintiff violated its authority based upon the evidence in this case is a question of fact. It is clear from the record that the Commission\u2019s order was not based on an improperly promulgated rule. The order was not against the manifest weight of the evidence, nor was it arbitrary or capricious.\nWe agree with the Commission that the definitions of \u201cbuilding material\u201d and \u201croad building material\u201d applied in this case are interim standards which may be applied without formal promulgation as a rule. In light of our holding on this issue, it becomes evident that the circuit court also erred in awarding attorney fees, since such an award can only be made in the event a rule of an agency is invalidated by a court. HI. Rev. Stat. 1991, ch. 127, par. 1010 \u2014 55(c) (formerly HI. Rev. Stat. 1989, ch. 127, par. 1014.1(b)).\nAccordingly, we reverse the orders of the circuit court of Sanga-mon County reversing the order of the Commission and remanding the cause to the Commission to vacate the civil penalty and awarding attorney fees to plaintiffs, and reinstate the Commission\u2019s order.\nReversed; Commission order reinstated.\nCOOK and GREEN, JJ., concur.", "type": "majority", "author": "JUSTICE McCULLOUGH" } ], "attorneys": [ "Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Diana G. Collins, Special Assistant Attorney General, of Chicago, of counsel), for appellant.", "Robert T. Lawley, of Routman & Lawley, Ltd., of Springfield, for appel-lees." ], "corrections": "", "head_matter": "F.H. STUTZKE et al., d/b/a Stutzke Excavating and Trucking Company, Plaintiffs-Appellees, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellant.\nFourth District\nNo. 4\u201492\u20140718\nOpinion filed March 18, 1993.\nRoland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Diana G. Collins, Special Assistant Attorney General, of Chicago, of counsel), for appellant.\nRobert T. Lawley, of Routman & Lawley, Ltd., of Springfield, for appel-lees." }, "file_name": "0315-01", "first_page_order": 333, "last_page_order": 338 }