From the facts stated in the opinion of the court it appears that on acquiring a license from one Johnson the plaintiff received from the commission a license authorizing it to serve the three department stores throughout the entire district covered by its original license *Page 614a and to serve whomever might apply to it for service within a smaller district covered by the Johnson license. Under this license the plaintiff was serving the three department stores and some six or eight specialty stores with whom Johnson had contracts. The plaintiff petitioned the commission to amend its license so as to permit it to serve such specialty stores as it might contract with throughout the entire district covered by the original department store's license.
The commission denied the amendment on the ground of its finding that "the proposed additional operations of the applicant are not in the public interest and are not required by public convenience and necessity." From this order plaintiff appealed to the circuit court and that court reversed the order on the ground that the order is "unreasonable and unlawful" and directed the commission to enter a "proper and lawful order." The commission appealed from this judgment. This court affirmed that judgment and the commission has moved for a rehearing.
The commission in granting to the plaintiff the license the plaintiff applied to the commission to amend must have found that the existing facts entitled the plaintiff to serve the three department stores throughout the entire district covered by the original license. If such facts were that the service granted by that license was in the public interest and required by public convenience and necessity, as the commission contends it must find in order to grant a license as a contract carrier, then the commission must have found that the service performed by the plaintiff for the three department stores throughout the entire district covered by the original license was "in the public interest and is required by public convenience and necessity." The same facts existed and applied as to service to the specialty stores the plaintiff was serving that existed and applied to the three department stores.
If those facts warranted continuance of the service to the department stores throughout the entire district, they necessarily required the permitting of service throughout the entire *Page 614b district to the specialty stores. If it was reasonable and lawful for the commission to continue to, the department stores the service the plaintiff was rendering them pursuant to the original license, then manifestly it was reasonable and lawful for plaintiff to render the same service to the specialty stores it was serving and the judgment of the court that the refusal of the commission to permit such service to the specialty stores was "unreasonable and unlawful" is manifestly correct. The commission acted capriciously and arbitrarily in denying to one set of stores, the specialty stores plaintiff was serving, the service it permitted to another set of stores, the department stores, and in denying to the plaintiff the right to contract with those specialty stores for service throughout the entire district the same as it permitted it to contract with the department stores. The commission is bound by the Fourteenth amendment to the United States constitution the same as are the courts. It cannot deny either equality or due process. For the reasons above stated the judgment of the circuit court is correct.
The parties hereto are trying to litigate a question that is not involved in this proceeding. The commission wants the court to determine that the plaintiff must serve everybody who wants its service, because, as they contend, it is a common carrier, and a common carrier must so serve. The plaintiff wants the court to determine that it is only required to serve such persons as it may choose to serve, because, as it contends, it is not a common carrier. That question can only be determined in litigation between the plaintiff and some person to whom the plaintiff has denied service. If the plaintiff shall refuse as a contract motor carrier to serve some person who has applied to it for such service, such person may take appropriate proceedings to compel the plaintiff to render him or it such service. No such person is before the court in this proceeding. This court is therefore without power to make an effective decision upon that question. Whatever it has said upon that question in its decision is obiter. *Page 615