dissenting:
Our decision in this case depends upon the proper interpretation of the statutory language which places under the jurisdiction of the Illinois Commerce Commission only those persons who shall operate a motor vehicle “for the carriage of passengers for hire, indiscriminately accepting- and discharging such persons as may offer themselves for transportation, along the course on which such vehicle is operated.” (Ill Rev Stats 1961, c 111%, § 57). I have emphasized the word “indiscriminately” because it furnishes the key to the meaning of the language employed by the legislature to distinguish between public and private carriers.
From my reading of the same cases relied upon by the majority, I reach the conclusion that the facts in the case at bar do not demonstrate indiscriminate acceptance and discharge of passengers. Illinois Highway Transp. Co. v. Hantel, 323 Ill App 364, 55 NE2d 710; Jacksonville Bus Line Co. v. Watson, 344 Ill App 175, 100 NE2d 391; Jacksonville Bus Line Co. v. Watson, 349 Ill App 462, 110 NE2d 834.* In my opinion, the prior existence of written contracts between passengers and operator is not requisite to classification as a private carrier. Such contracts are merely evidence of discrimination in the acceptance and discharge of passengers, and if it has been otherwise established, as I believe it has in the case at bar, that the operator does not indiscriminately accept and discharge passengers, then the absence of such contracts does not render him a public carrier.
All of the factors necessary to negative the indiscriminate acceptance of passengers are found among the stipulated facts in the case at bar. Only students of the six particular high schools are accepted as passengers. The schedule of the busses is limited to arrive at the schools in time for the opening of classes in the morning, and to return at the close of classes in the afternoon. The student-passengers are not permitted to alight from the busses at intermediate points. At some of the schools the tokens or passes are sold to the students by school officials. The public transportation available to these schools is less convenient and requires either multiple fares or multiple transfers.
The New York case cited in the majority opinion (Public Service Commission v. Columbo (Misc), 118 NYS2d 873) deals with a statute radically different from the Illinois law and drafted from an entirely different approach. I believe the New York decision to have been correct, but do not find it persuasive here.
I would affirm the judgment of the Superior Court.
In the first Jacksonville Bus ease the defendant was found to be a public carrier and in the second case a private carrier. I submit that the critical difference in the facts in the two cases was not that contracts were in existence by the time of the second case, hut that the transportation in question had changed its character from indiscriminate to discriminate. Passengers were limited to employees at plants of one employer; passengers were no longer carried to hospital, laundry, etc.; intermediate stops were eliminated; schedules were limited to the start and close of working hours, etc. Thus the facts evidenced by the contracts in the second Jacksonville ease were remedied to meet the objections in the first decision. In the ease at bar, however, contracts based on existing facts would bring it within the second rather than the first Jacksonville ease and within the decision in Hantel.