APPEALS from the Circuit Court of Kane County, the Hon.
CHARLES A. O'CONNOR, Judge, presiding; and from the Superior
Court of Cook County, the Hon. JAMES J. McDERMOTT, Judge,
MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 26, 1953.
These proceedings arise out of the filing of new schedules increasing rates by Illinois Bell Telephone Company with the Illinois Commerce Commission on January 12, 1951. By orders entered December 10, 1951, and December 12, 1951, the commission cancelled all of such rate schedules. The city of Chicago filed an appeal to the superior court of Cook County from the first order and the company, after having filed appeals to the circuit court of Kane County, from each order, also filed a separate appeal from each order to the superior court. All three appeals were consolidated by the superior court and that court entered a judgment setting aside the commission's order for lack of jurisdiction, but did not pass upon the merits. From that judgment the telephone company and Commerce Commission each appeal to this court, the latter seeking reversal only as to one phase of the jurisdictional dispute.
Upon the appeal of the company to the circuit court of Kane County, the causes were there consolidated and that court found that it had jurisdiction and, after a hearing on the merits, vacated and set aside the orders of the commission.
By order of this court all proceedings, including the appeals by the commission from the order of the circuit court of Kane County in the consolidated cases there, an appeal by Illinois Bell Telephone Company from the order of the superior court in the consolidated proceedings before it and a cross appeal from the same order by the commission, are here consolidated.
Since some of the parties are appellant, appellee and cross appellant and the others are both appellants and appellees, for convenience Illinois Bell Telephone Company will be referred to herein as the "Company," Illinois Commerce Commission will be designated the "Commission" and the city of Chicago will be referred to as the "City."
There are two primary procedural questions involved. The first is an attack by the Company upon the jurisdiction of the superior court and the second is brought about by the contention of the City that the Commission lacks jurisdiction to grant or enter upon a hearing concerning the rate schedules.
The questions will be considered in inverse order since, if the contention of the City be sustained, then neither the superior court nor the circuit court could consider the cause on its merits.
The City has contended, both before the Commission and in the courts, that the Commission should have cancelled and annulled the rate schedules filed with it, for the reason that less than two years had elapsed since the last order had been entered by the Commission on rate schedules filed by the Company, in violation of section 67 of the Public Utilities Act. (Ill. Rev. Stat. 1951, chap. 111 2/3, par. 71.) The particular portion of section 67 relied upon is the last sentence, which reads as follows: "Only one rehearing shall be granted by the Commission; but this shall not be construed to prevent any party from filing a petition setting up a new and different state of facts after two years, and invoking the action of the Commission thereon." It is contended that section 67 creates a two-year period of repose, during which a utility is prohibited from filing new rate schedules.
The City applied to the circuit court of Cook County for a writ of prohibition against the Commission and the Company to prevent the former from considering the proposed increased rate schedule and compelling it to cancel it. That court refused the remedy and the City dismissed its petition. At the close of the hearings before the Commission the City moved the Commission to disregard the evidence and enter an order canceling the schedules on the sole ground that two years had not elapsed since its last order. The Commission overruled the motion and entered its order canceling all increases but did so on its findings from the evidence and not on the City's interpretation of section 67.
This question has been arising for many years before the Commission and the trial courts, but has not heretofore been directly raised and squarely passed upon by this court. It is time that there be a final determination of this issue.
The sentence above quoted, relied upon by the City, appeared in the original public utilities statute and an identical provision has been included in the statutes ever since. It is conceded by the City that the Commission has consistently overruled objections to its jurisdiction based upon the two-year limitation, and the trial courts have sustained the Commission in such rulings. It is true that we have held that public utility reports are not considered as authority in this court on an issue involving the review of an order of the Commission and that we cannot allow a governmental agency to extend the operation of a statute by administrative regulation. (State Public Utilities Com. ex rel. East St. Louis Stone Co. v. Terminal Railroad Assn. 281 Ill. 181; Mallen Co. v. Department of Finance, 372 Ill. 598.) On the other hand, such administrative and judicial authority over a period of thirty years is persuasive, since we are interpreting the meaning of the statute and trying to gather the legislative intent. The legislature is well aware of the rulings on this point, has revised the Public Utilities Act once and has amended it numerous times, without changing the language of the quoted sentence. Surely, if it would have intended the sentence to act as a limitation of jurisdiction of the administrative body and found that such limitation was being ignored by the tribunal created by it, the legislature would have amended the act in such a manner that its meaning be made clear.
A review of the cases cited in connection with this proposition indicates that, prior to this time, we have only passed upon it inferentially.
In the case of Chicago Railways Co. v. City of Chicago, 292 Ill. 190, there was a prior order within two years. Within three and one-half months after the order in that case was entered and while the appeal from the said order was pending, the company filed a new petition for increases in rates based on increased labor cost since its evidence was heard in the last proceeding. The commission, in the new proceeding, authorized a temporary increase pending hearings on a permanent increase, and from this order the city of Chicago appealed. It relied on the last sentence, a sentence identical with the one quoted above, and other points. The circuit court rejected that particular point but set aside the commission's order on other objections. The point was again argued in this court but we reversed the circuit court on other grounds. Upon a petition for rehearing the city again raised the question of the failure of two years to elapse. This court denied the rehearing and filed its original opinion. It was the rule then, as now, that it is the duty of this court to rule on a jurisdictional defect at any stage of the proceeding that such a defect becomes apparent. (People v. Industrial Savings Bank, 275 Ill. 139; Michelson v. Industrial Com. 375 Ill. 462; Werner v. Illinois Central Railroad Co. 379 Ill. 559.) While we did not in that opinion specifically rule upon the point, it must be taken as rejected in view of the fact that it was presented and was ...