specially concurring:
I agree that the Commission improperly rescinded petitioners’ certificate of public convenience and necessity. Section 10—113 of the Public Utilities Act allows rescission only after notice and on opportunity to be heard “as provided in the case of complaints.” 220 ILCS 5/10—113 (West 1992). As the supreme court explained:
“ ‘A public utility acquires an interest in a certificate granted to it and is authorized to act according to its term's. If the proposed action of the commission is to lead to a rescission of the certificate, it is obvious that the exercise of the power of rescission must meet with the rules of due process. The requirement of section 67 [now section 10—113] that there be opportunity to be heard as in case of complaint and the procedural requirements of the section on complaint (section 64 [now section 10—108]) accord with the rules of due process as understood and applied to public utilities.’ ” Union Electric Co. v. Illinois Commerce Comm’n, 39 Ill. 2d 386, 393-94, 235 N.E.2d 604, 609 (1968), quoting Black Hawk Motor Transit Co. v. Illinois Commerce Comm’n, 398 Ill. 542, 554, 76 N.E.2d 478, 485 (1947).
Section 10—108 requires that the complaint be “in writing, setting forth any act or things done or omitted to be done in violation, or claimed to be in violation, of any provision of this Act, or of any order or rule of the Commission.” 220 ILCS 5/10—108 (West 1992). As noted in Black Hawk, though no particular form of complaint is required, “ ‘there must be a statement of the thing which is claimed to be wrong, sufficiently plain to put the carrier upon its defense.’ ” Black Hawk, 398 Ill. at 561, 76 N.E.2d at 488, quoting Alton & Southern R.R. v. Commerce Comm’n ex rel. Perry Coal Co., 316 Ill. 625, 630, 147 N.E. 417, 419 (1925).
The problem in this case was that the Commission was not claiming that any provision of the Act had been violated. Instead, the Commission stated “that great interest in the construction of this pipeline has been demonstrated by the number of petitions to intervene which have been filed in the eminent domain proceeding, and [we] find[ ] that the public interest requires the reopening of [the certificate proceeding] because no interested parties, other than the [petitioners], appeared during the original proceeding to voice their opinions and concerns as to whether the public convenience and necessity would be served by the construction of this pipeline.” Although section 200.90 of the Illinois Administrative Code empowers the Commission to reopen any proceeding where “the public interest requires” (83 Ill. Adm. Code § 200.90 (1992-93)), Union Electric and Black Hawk dictate that the procedural requirements of section 10—108 must be met where recission of a certificate may result from that reopening.
In my view, the denial of due process suffered by petitioners here was technical, not substantial. Petitioners were informed that the Commission was reviewing the propriety of issuing the certificate and numerous hearings were held in which petitioners fully participated, putting on what has been repeatedly described as a “full certificate case.” As the Commission noted in its order, “[petitioners at all times knew exactly what the nature of the inquiry was.” Nevertheless, we are bound by Union Electric and Black Hawk, and I believe those decisions require the result reached here.
There is considerable irony, however, in overturning the Commission’s decision on the basis that a lack of notice deprived petitioners of due process. At its core, this case is about lack of notice — to the intervening landowners. On April 25, 1995, petitioners published notice in the Edwardsville Intelligencer, in Madison County, Illinois, that they were seeking authorization from the Commission to build the pipeline. No part of the proposed line lies within Madison County. The distance between Edwardsville and Morris, Illinois, where many of the intervenors live, is over 200 miles. Such “notice,” in my opinion, is completely inadequate to advise the intervenors that petitioners were proposing to build a pipeline across their land. However, even this minimal notice was more than was required. The Commission found that the Illinois Commercial Transportation Law imposes no notice requirement on pipeline common carriers applying for certification. It appears that the Commission was correct. Furthermore, lack of notice does not deprive intervenors of due process because, as the Commission noted, “the [s]upreme [cjourt has held, on numerous occasions, that landowners on a path proposed for certification have no right to notice of the proceedings addressing certification, because the granting of a certificate deprives them of neither their property nor any interest therein.”
To petitioners’ credit, they took additional steps to inform intervenors of the certificate proceedings. On approximately May 9, 1995, petitioners mailed letters to the landowners advising them that they planned to build a pipeline across their property. However, while the attached informational booklet noted that an application for certification had been filed with the Commission, it did not advise intervenors of the docket number of the application, where a copy might be obtained, or of any rights they might have to participate. Moreover, on May 11, 1995 — two days after the letters were mailed— petitioners filed a letter requesting the Commission to issue the certificate without a hearing because no party had moved to intervene. The letter indicated that the time for intervention had expired on May 10—one day after the letters were mailed to the landowners.
It is apparent that the landowners did not have sufficient notice to provide a realistic chance of participating in the certification process. It seems likely that this lack of any meaningful opportunity to be heard motivated the Commission’s decision to reopen the proceedings. In any event, I believe it would be patently unfair to force the intervening landowners to give up their land, through use of petitioners’ eminent domain power, without having had the opportunity to challenge the need for the pipeline. Fortunately, intervenors are not precluded from doing so, despite petitioners’ contention that issuance of the certificate stands as a conclusive finding of public convenience and necessity which may not be challenged in the eminent domain proceeding.
In Illinois Power Co. v. Lynn, 50 Ill. App. 3d 77, 365 N.E.2d 264 (1977), the Commission issued a certificate of convenience and necessity to the power company after holding hearings. Defendant landowners, who had participated in the hearings, did not seek a rehearing or appeal the Commission’s decision. When the power company attempted to take the land by eminent domain, the landowners filed a motion to dismiss and traverse. The trial court denied the motion, finding that the question of public need for the land had been resolved by the Commission. On appeal, the reviewing court characterized the issue as whether the “Commission’s finding that the needs and plans of the utility constitute a ‘public use,’ and that certain properties need to be acquired to develop those plans, preempt the courts from inquiring into these same subject matters?” Illinois Power, 50 Ill. App. 3d at 78, 365 N.E.2d at 265.
After examining the “seemingly conflicting” case law, the court concluded that the landowners were not foreclosed from raising the issue of whether the proposed project constituted a public use. The court explained that the certificate proceedings merely decided the reasonableness of the utility’s plan and did not confer property rights. Those rights “are in jeopardy for the first time in court [at the eminent domain proceedings] and are protected there by the motion to dismiss and traverse.” Illinois Power, 50 Ill. App. 3d at 81, 365 N.E.2d at 267.
The rationale underlying the Illinois Power decision was perhaps best expressed over 70 years ago in Limits Industrial R.R. Co. v. American Spiral Pipe Works, 321 Ill. 101, 105-06, 151 N.E. 567, 569 (1926):
“The court cannot inquire into the necessity or propriety of the exercise of the right of eminent domain, which is the power to take private property without the consent of the owner upon making just compensation therefor. That is a legislative question, and when the legislature, by itself or by an agency to which authority for the purpose has been lawfully delegated, has decided the cases in which the power may be exercised, the courts may not interfere with the decision. On the other hand, it is only for public use that the legislature can authorize private property to be taken, and any attempt to grant the right to take private property for a use not public is unconstitutional and void. [Citations.] The question whether the use to which it is sought to apply private property by the exercise of the power of eminent domain is a public use is therefore a judicial question, and whenever the right to take private property by the exercise of that power is challenged because the use for which the property is sought to be taken is not a public use, the court must decide the question. The findings of the Commerce Commission, its certificate of convenience and necessity and its approval of the issue of the capital stock of the railroad company are therefore in no way conclusive, and the question whether the proposed use was public or not was open for the consideration of the court on the motion to dismiss the petition.” (Emphasis added.)
Thus, even though our decision here nullifies the Commission’s finding that the pipeline was a private venture that did not benefit the public, intervenors may litigate that issue in any subsequent eminent I domain proceedings. This ensures that the due process rights of the I landowners receive the same protection bestowed upon the petitioners.