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Private Tele-communications v. Ill. Bell Tel.

AUGUST 22, 1975.

PRIVATE TELE-COMMUNICATIONS, INC., ET AL., PLAINTIFFS-APPELLEES,

v.

ILLINOIS BELL TELEPHONE COMPANY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. PRESIDING JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:

Defendants bring this appeal from an order of the circuit court on June 5, 1975, suspending a tariff filed by Illinois Bell Telephone Company before the Illinois Commerce Commission.

On appeal, defendants raise three issues for this court's consideration under the caption in the brief "Issues Presented for Review": (1) whether the trial court had jurisdiction to review the interim order of the Commerce Commission at this stage; (2) whether the Illinois Commerce Commission properly acted within its discretion in lifting the tariff suspension and allowing Bell to market its product before the Commission established a final price. The third issue was presented for review by the defendants under the caption of "Points and Authorities" as follows: (3) if the interim order of the Commission was improper, the trial court should have dismissed the case as moot before the tariff became effective because the tariff became effective May 20, 1975.

Because the defendant raised the issue of mootness, the plaintiff responded to that issue by its brief and in addition plaintiffs raise one further issue for this court's consideration: whether the due process clauses of the Federal and State Constitutions required the Illinois Commerce Commission to give notice and an opportunity to be heard before entering the interim order of February 26, 1975, after a complaint had been filed by the plaintiff in attacking the proposed tariff.

On December 20, 1974, Illinois Bell Telephone Company (hereinafter Bell) filed tariff sheets with the Illinois Commerce Commission (hereinafter Commission) in order to market a new switchboard, the Dimension System service, at a specified price. On January 16, 1975, the Commission issued an order suspending the Dimension System service tariff sheets through May 20, 1975, and ordered that a hearing be held. Also occurring on January 16, 1975, Private Tele-Communications, Inc., (hereinafter PRI-TEC), an Illinois corporation engaged in the sale and leasing of various types of telephone systems and service, filed with the Commission a "Petition to Suspend Proposed Tariff and Complaint as to Proposed Tariff." There is no contention that the suspension order was the result of plaintiff's petition.

On January 27, 1975, Bell petitioned the Commission to lift its January 16 suspension order. On February 26, 1975, the Commission issued an "Interim Order" which vacated the January 16 suspension order and therefore permitted Bell to market the Dimension System service; required Bell to advise its customers that the Dimension System tariff was experimental and that the price could be raised or lowered by the Commission after the conclusion of hearings; allowed PRI-TEC to intervene and offer evidence in the Commission's tariff proceeding; and ordered expedited hearings.

On March 5, 1975, PRI-TEC filed before the Commission a petition for Rehearing on the "Interim Order." Also on March 5, 1975, PRI-TEC and North American Telephone Association filed a complaint in the circuit court of Cook County labelled "Complaint for Reversal of Order of the Illinois Commerce Commission entered February 26, 1975 and for Other Relief." On March 7, 1975, defendants filed a motion to dismiss the complaint for lack of jurisdiction. On March 19, 1975, the Commission denied PRI-TEC'S petition for rehearing.

On March 28, 1975, PRI-TEC filed a Notice of Appeal with the Commission, and on April 1, 1975, filed its Notice of Appeal in the circuit court of Cook County under the same case number as the one filed on March 5. The appeals are from the order of February 26 and the denial of a rehearing on March 19. On June 5, 1975, the circuit court entered an order providing that the original tariff filed by Bell be suspended until a hearing is conducted by the Commission.

OPINION

On appeal, defendants contend that the circuit court lacked jurisdiction to review the Commission's order which permitted Bell to market the Dimension System service. We agree with defendants.

• 1 Appeals from orders of the Commerce Commission are purely statutory, and to become legally effective they must be prosecuted in accordance with the requirements of the statute. (Alton R.R. Co. v. Commerce Com., 407 Ill. 202; Village of Waynesville v. Pennsylvania R.R. Co., 354 Ill. 318.) Resolution of this jurisdictional question is therefore dependent upon application of sections 67 and 68 of the Public Utilities Act, which provide in relevant part:

§ 68. Within 30 days after the service of any order or decision of the Commission refusing an application for a rehearing of any rule, regulation, order or decision of the Commission, or within 30 days after the service of any final order or decision of the Commission upon and after a rehearing of any rule, regulation, order or decision of the Commission, any person or corporation affected by such rule, regulation, order or decision, may appeal to the circuit court of the county in which the subject-matter of the hearing is situated, or if the subject-matter of the hearing is situated in more than one county, then of any one of such counties, for the purpose of having the reasonableness or lawfulness of the rule, regulation, order or decision inquired into and determined. * * *" *fn1

"§ 67. Within 30 days after the service of any rule or regulation, order or decision of the Commission any party to the action or proceeding may apply for a rehearing in respect to any matter determined in said action or proceeding and specified in the application for rehearing. The Commission shall receive and consider such application and shall grant or deny such application in whole or in part within 20 days from the date of the receipt thereof by the Commission. In case the application for rehearing is granted in whole or in part the Commission shall proceed as promptly as possible to consider such rehearing as allowed. No appeal shall be allowed from any rule, regulation, order or decision of the Commission unless and until an application for a rehearing thereof shall first have been filed with and finally disposed of by the Commission * * *." (Emphasis added.) *fn2

It is uncontroverted that on March 5, 1975 PRI-TEC simultaneously filed a Petition for Rehearing before the Commission of the February 26 order and a complaint in the circuit court for judicial review and reversal of that same order. The Commission ...


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