{ "id": 2970301, "name": "ORRWAY MOTOR SERVICE, INC., Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellee", "name_abbreviation": "Orrway Motor Service, Inc. v. Illinois Commerce Commission", "decision_date": "1976-06-17", "docket_number": "No. 62131", "first_page": "869", "last_page": "874", "citations": [ { "type": "official", "cite": "40 Ill. App. 3d 869" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "268 N.E.2d 32", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill. 2d 36", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905643 ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0036-01" ] }, { "cite": "125 P. 512", "category": "reporters:state_regional", "reporter": "P.", "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "53 Colo. 157", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 2520391 ], "opinion_index": 0, "case_paths": [ "/colo/53/0157-01" ] }, { "cite": "408 Ill. 104", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2644545 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/ill/408/0104-01" ] }, { "cite": "249 N.E.2d 174", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "110 Ill. App. 2d 156", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1594009 ], "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/110/0156-01" ] }, { "cite": "298 N.E.2d 242", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 83", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2853293 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0083-01" ] } ], "analysis": { "cardinality": 531, "char_count": 12763, "ocr_confidence": 0.891, "pagerank": { "raw": 3.2232054342827733e-07, "percentile": 0.8672445768073737 }, "sha256": "8d32e196e917bc870d4cfe8f21c44a12d06e8fdcf2e2f9d5a2b855f35db0a6c8", "simhash": "1:ad822ac76f097a2f", "word_count": 2086 }, "last_updated": "2023-07-14T17:46:14.004939+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ORRWAY MOTOR SERVICE, INC., Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE McGLOON\ndelivered the opinion of the court:\nPlaintiff, Orrway Motor Service, Inc., appeals from an order of the circuit court of Cook County affirming the decision and administrative order of the Illinois Commerce Commission which denied Orrway\u2019s petition to vacate the prior order revoking Orrway\u2019s certificate of public convenience and necessity as a motor common carrier. Plaintiff contends that the Commission and trial court erred in refusing plaintiff an opportunity to attempt to rebut the presumption that it had notice of the certificate revocation hearing.\nWe reverse and remand.\nThe record reveals the following pertinent facts. On May 5, 1972, the Illinois Commerce Commission mailed to Orrway a citation order to show cause, directing Orrway to appear on May 25 at a hearing to determine whether Orrway\u2019s certificate should be revoked for failure to comply with section 18 \u2014 701 of the Illinois Vehicle Code, requiring motor carriers to have proof of insurance coverage on file with the Commission. (Ill. Rev. Stat. 1971, ch. 95\u00bd, par. 18 \u2014 701.) The citation order was posted by certified mail, with return receipt requested. On May 25, a hearing was held, but Orrway failed to appear. On June 7, the Commission revoked Oniway\u2019s certificate. A copy of the Commission\u2019s revocation order was mailed to Orrway on June 13, 1972.\nOn May 16, 1973, 11 months later, Orrway filed a petition with the Commission alleging that it never received either the citation order to show cause at the certificate revocation hearing or a copy of the revocation order. As pertains to the question of notice, the petition alleged that Orrway had changed its mailing address from a street number to a post office box, that some mail had been forwarded, and that it is common in its area of business that mail is misdelivered or lost. The petition requested that the Commission\u2019s order revoking Orrway\u2019s certificate be vacated and that the certificate be reinstated. The Commission denied the petition, finding that it was not timely filed and that the \u201cgrounds for vacation do not appear to be supported by the evidence in the file.\u201d Orrway s application for rehearing repeated that it never received notice, and requested a hearing on the matter to adduce evidence showing that it never received notice of the proceedings. The application for rehearing and an evidentiary hearing was denied by the Commission. Orrway filed a notice of appeal to the. circuit court from the Commission\u2019s orders. The circuit court affirmed the Commission\u2019s orders, and this appeal follows.\nOrrway\u2019s primary contention on appeal is that since it was never served with notice of the certificate revocation proceedings, the revocation order is void as being without statutory authority. The Commission argues that the revocation order was properly entered since notice was given to Orrway as required by law.\nNotice of proceedings before the Illinois Commerce Commission pursuant to the Illinois Vehicle Code is governed by section 18 \u2014 900 of the Code (Ill. Rev. Stat. 1971, ch. 95-/2, par. 18 \u2014 900) which adopts the notice requirements contained in \u201cAn Act concerning public utilities.\u201d Section 66 of \u201cAn Act concerning public utilities\u201d provides for service of the Commission\u2019s orders:\n\u201cEvery order of the Commission shall be served upon every person or corporation to be affected thereby either by personal delivery of a certified copy thereof, or by mailing in the United States mail a certified copy thereof, in a sealed package with postage prepaid * * *. * * * mailing in the United States mail as hereinbefore provided, shall constitute service, without additional proof of a receipt of said certified copy or copies of said order. It shall be the duty of every person and corporation to notify the Commission forthwith, in writing, of the receipt of the certified copy of every order so served \u00b0 \u00b0 (Ill. Rev. Stat. 1971, ch. 111 2/3, par. 70.)\nAccording to the statute, an order may be presumed to be served when it is properly mailed.\nOrrway argues that the presumption of receipt does not apply because the record does not contain evidence sufficient to prove service. (See ITT Abrasive Products Co. v. Lewis (1973), 12 Ill. App. 3d 83, 298 N.E.2d 242.) At the May 25 revocation hearing, the only evidence presented was the testimony of a Commission employee who stated that from the Commission\u2019s files it appeared that:\n\u201c \u00b0 \u00b0 On April 26, 1972, the Illinois Commerce Commission entered an order which was served on May 5, 1972, citing Respondent to appear at the office of the Commission on May 25, 1972, to show cause \u201d *\nOrrway contends that this conclusory testimony is insufficient to prove the fact of service because it does not specify to whom or in what form the notice was purportedly given. We note that the record on appeal does not contain any proof of service, such as a certified mail return receipt, a sheriff s return, or Orrway\u2019s written acknowledgement of receipt of the order as is required by section 66. The record does contain the following Commission docket entry for May 5, 1972:\n\u201cCertified copy of Citation Order mailed to Orrway Motor Service, Inc. [street address], by U.S. certified mail and return receipt requested.\u201d\nAccording to section 66, an order is presumed served if it is properly mailed. Since the Commission\u2019s official record reflects the fact that the citation order was mailed to Orrway, we find that the statutory presumption of service applies herein. Ill. Rev. Stat. 1971, ch. 111 2/3, par. 70.\nThe Commission contends that the statutory presumption of service is conclusive, so that Orrway could never rebut the fact of service. In support of this contention, it is argued without citation of authorities that by enacting section 66 of \u201cAn Act concerning public utilities\u201d (Ill. Rev. Stat. 1971, ch. 111 2/3, par. 70), the legislature intended that service should be irrebuttably presumed when the Commission\u2019s order is deposited in the United States mail. We disagree. We believe that the legislative intent behind section 66 was to allow the Commerce Commission to inexpensively serve its orders by mail. To this end, the legislature authorized service of orders by mail and adopted the common law presumption concerning mailed letters. The common law presumption was well stated in Winkfield v. American Continental Insurance Co. (1969), 110 Ill. App. 2d 156, 160, 249 N.E.2d 174, 176:\n\u201cIt is generally established that the mailing of a properly stamped and properly addressed letter raises a presumption that the letter was received by the addressee. If the addressee denies the receipt of the letter then the presumption is rebutted and receipt becomes a question to be resolved by the trier of fact.\u201d\nSection 66 creates a rebuttable presumption that a Commission order is served when it is properly mailed by the Commission.\nThe issue for our consideration is whether the Commission erred in not affording Orrway an opportunity to introduce evidence to rebut the presumption of service. The Commission\u2019s order denying Orrway\u2019s petition to vacate the revocation order found, inter alia, that the petition was not timely filed.\nApplications for rehearing in the Commission must be filed within 30 days after service of the Commission\u2019s order. (Ill. Rev. Stat. 1971, ch. 111 2/3, par. 71.) If Orrway\u2019s petition were an application for rehearing of the revocation order which was entered over 11 months earlier, the Commission\u2019s actions would have been proper. However, Orrway\u2019s petition was addressed only to the question of whether the Commission had jurisdiction by having properly served its citation order to show cause upon Orrway. Rehearing of the revocation order was not requested; Orrway asked only for a hearing so it could rebut the presumption that service of the citation order was properly made. It is fundamental that if the Commission does not have jurisdiction of the subject matter and of the parties, the Commission\u2019s order is void and may be attacked at any time. (See Illini Coach Co. v. Commerce Com. (1951), 408 Ill. 104, 96 N.E.Sd 518.) This is not to say that the Commission\u2019s revocation order is void; rather, the best that can be said in light of Orrway\u2019s petition is that the revocation order is voidable. The following portions of the opinion in Kavanagh v. Hamilton (1912), 53 Colo. 157, 125 P. 512, 515, are descriptive of the void-voidable distinction:\n\u201cThe words \u2018void\u2019 and \u2018voidable\u2019 do not denote different degrees of faultiness in judgments, but are a classification based on the evidence. If an inspection of the record proper furnished the facts showing that the court acted without jurisdiction, the judgment is void, and may be collaterally attacked. If, on the other hand, the record does not show this jurisdictional infirmity, or does not furnish the evidence of nullity, or if it shows or recites jurisdictional facts which are untrue, the judgment is voidable. The attack upon it, however, in such a case, must be direct, for the purpose of establishing by other evidence the untruthfulness of the record. When this is done, it is as void as any judgment which the record shows was rendered without jurisdiction. 0 \u00b0 \u00b0 A void judgment must show from an inspection of its own record that it is void, while a voidable judgment shows from its record that it is good, and it will remain good until proven void, in a suit brought for that purpose.\u201d\nIn the case at bar, the Commission\u2019s revocation order is voidable because the record shows that Orrway is presumed to have been served with a copy of the citation order to show cause. Orrway requested a hearing to introduce evidence to rebut the statutory presumption and thereby prove the revocation order void. Since jurisdiction may be attacked at any time, we believe that Orrway should have been given an opportunity to raise the question of jurisdiction by rebutting the presumption of service. The Commission erred in denying Orrway\u2019s petition on the ground that it was not timely filed.\nThe Commission also found that the \u201cgrounds for vacation do not appear to be supported by the evidence in the file,\u201d but the order does not describe the purported evidence in the file. Even assuming that the Commission has proof of service on file, the record on appeal is insufficient to support such a conclusory finding. (United Cities Gas Co. v. Commerce Com. (1971), 48 Ill. 2d 36, 268 N.E.2d 32.) The Commission erred in denying Orrway\u2019s petition for this reason.\nAccordingly, we hold that the Commission erred in denying Orrway\u2019s petition for a hearing to rebut the statutory presumption of service, and that the trial court erred in affirming the Commission\u2019s orders.\nSection 68 of \u201cAn Act concerning public utilities\u201d grants the following powers to a court reviewing a Commission order:\n\u201cIf it appears that the Commission failed to receive evidence properly proffered, on a hearing or a rehearing, or an application therefor, the court shall remand the case to the Commission with instructions to receive the testimony so proffered and rejected, and to enter a new order based upon the evidence theretofore taken, and such new evidence as it is directed to receive, unless it shall appear that such new evidence would not be controlling, in which case the court shall so find in its order.\u201d (Ill. Rev. Stat. 1971, ch. 111 2/3, par. 72.)\nWe find that Orrway applied for a hearing to contest the Commission\u2019s jurisdiction, proffered evidence to rebut the presumed fact of service, that such evidence could be controlling as to the fact of service, and that the Commission improperly denied Orrway\u2019s application for an evidentiary hearing.\nFor the abovementioned reasons, we reverse the order of the circuit court of Cook County affirming the Illinois Commerce Commission\u2019s orders, and remand the cause to the circuit court with directions to remand the case to the Commission with instructions to hold an evidentiary hearing as to whether the citation order to show cause was in fact served on Orrway prior to May 25, 1972. If determined in the negative, the Commission is to vacate its revocation order as being void. If determined in the affirmative, the Commission is to deny Orrway\u2019s petition to vacate the revocation order.\nOrder reversed; cause remanded with directions.\nMEJDA, P. J, and DEMPSEY, J., concur.", "type": "majority", "author": "Mr. JUSTICE McGLOON" } ], "attorneys": [ "James R. Madler, of Chicago, for appellant.", "William J. Scott, Attorney General, of Chicago (Peter A. Fasseas, James R. Sullivan, and Hercules F. Bolos, Assistant Attorneys General, of counsel), for appellee." ], "corrections": "", "head_matter": "ORRWAY MOTOR SERVICE, INC., Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 62131\nOpinion filed June 17, 1976.\nRehearing denied August 26, 1976.\nJames R. Madler, of Chicago, for appellant.\nWilliam J. Scott, Attorney General, of Chicago (Peter A. Fasseas, James R. Sullivan, and Hercules F. Bolos, Assistant Attorneys General, of counsel), for appellee." }, "file_name": "0869-01", "first_page_order": 897, "last_page_order": 902 }